The Supreme Court’s decision to remove all restrictions on corporate political spending has engendered the most cohesive national response seen since the 2008 national election. Yes, there are those that take the bizarre position that they "don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech". But most people were stunned, and the reaction from even media that would itself be freed by this decision ranged from Ruth Marcus’ takedown of the hypocrisy of the decision to the Boston Globe’s simple Corporations Are Not People. While a recent Gallup poll found public support for campaign finance law treating corporate donations the same as individuals’ donations, 61% of Americans think the government should be able to limit the amount of money individuals can contribute to candidates and 76% think it should be able to limit the amount corporations or unions can give.
It is remarkable that the Supreme Court decided entities defined by state law have national citizenship rights equal to the people referred to in "We The People." The decision is wrong and unpopular. People are already struggling to come up with ways to reduce the impact of this. And many think the Supreme Court, as arbiter of the Constitution, has left no recourse for those who disagree. Fortunately, because they are making the same epistemological error the Supreme Court’s majority did, those people are wrong.
The error that made this an issue is an uncritical interpretation of the word "person" in the phrase "legal person." By considering corporations to be "persons" independent of the qualifier "legal", not to mention independently of the reality underlying the term, one opens the discussion to irrelevancies such as "A large corporation, just like an individual, has many diverse interests. A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that. They may be concerned that the shareholders would rather they spend their money doing something else. The idea that corporations are different than individuals in that respect, I just don’t think holds up, " advanced by Justice Roberts, and "Most corporations are indistinguishable from the individual who owns them, the local hairdresser, the new auto dealer — dealer who has just lost his dealership and — and who wants to oppose whatever Congressman he thinks was responsible for this happening or whatever Congressman won’t try to patch it up by — by getting the auto company to undo it. There is no distinction between the individual interest and the corporate interest. And that is true for the vast majority of corporations," advanced by Justice Scalia. There are answers to these claims…in the first case, a diversity of interests is not the distinction between a person and a legal person. A person physically exists…a legal person is a useful fiction. In the second case, the idea that a corporation is indistinguishable from the individual that owns it, contradicts the physical fact that the IRS treats them separately all the time, and in any event that individual already has constitutionally protected rights of free speech and to petition the government and so do not need it a second time.
As I say, there are answers but undoing this corporate coup doesn’t require them, or an amendment to the Constitution. It requires clarification of the law. Because what most distinguishes persons from legal persons is that persons are physical, while legal persons were created by humans through legislative and legal action. If you search for a person you can generally find him; search for a legal person and you can only find what it owns.
Since a legal person only exists as defined in law, there is no legal barrier to Congress clarifying that definition. I would suggest something along the lines of:
For purposes of federal law, a legal person is a contract between persons to act as an economic unit. This economic unit has the legal right to enter into contracts as though it were a single human entity. Contracts joined by a legal person shall be enforceable under the law, under the same terms as for any single human entity. Legal persons shall be deemed to possess such other legal rights as may be necessary to insure it may execute those contracts it undertakes.
Other legal rights may be granted to classes of legal persons or legal persons as a class, which rights shall not be interpreted such that they supersede, impede or obstruct the constitutional rights of citizens and legal residents of the United States of America, its territories, and possessions.
This would actually remove the question entirely from the Court’s purview without invalidating a since law or contract, and the only economic impact it would have is on the purchase of politicians…something most of us would agree would be a good thing.