NewsHour’s Gwen Ifill memorialized with USPS Forever stamp
A conversation with ‘We the Corporations’ author Adam Winkler
Judy Woodruff: As the month comes to a close, it is time for the latest conversation of our book club, Now Read This, in partnership with The New York Times.
William Brangham has that.
And stick around for what to read in November.
William Brangham: The 2010 Supreme Court ruling Citizens United shocked the country, effectively granting corporations the same free speech rights as individuals and further opening the floodgates of money into our elections.
Many saw Citizens United as a dangerous new development, one that blurred the line between citizens and corporations.
But UCLA Law Professor Adam Winkler demonstrates in his book that it was just the latest in a very long line of victories, largely overlooked by history, where corporations fought for and won sweeping civil rights protections.
"We the Corporations" is that book, and the Now Read This choice for October.
Adam Winkler, the author, is here.
Adam Winkler: Thanks so much for having me.
William Brangham: I have to admit, this book really was a revelation, to find out so many of these things that we didn't -- that I really had no idea about in particular.
And many of our viewers, it seems, after reading this 200-year history of corporate rights being enshrined in law, made many of them mad. One of them wrote in saying that her blood was boiling at what you had documented.
Could you just briefly sketch out the kinds of rights that corporations have won for themselves over the decades?
Adam Winkler: Sure.
I mean, corporations have been fighting and winning constitutional rights in the Supreme Court for over 200 years. And even though the Supreme Court over the years didn't really protect the rights of women or racial minorities, up until the 1950s at least, throughout all that time, the court was often siding with corporations.
And corporations were granted the right to sue in court in the early 1800s, were granted rights of rights of equal protection and due process in the late 1800s. Corporations today have won most of the criminal protection rights that are in the Constitution, as well as in more recent years rights of freedom of speech and freedom of religion.
William Brangham: We all remember when Mitt Romney made that comment about, corporations are people too, my friend.
And people on the left ridiculed him for that. But, as you document, there really is this long legal history where the courts have viewed corporations as people.
Can you explain how that happened and why that happened?
Adam Winkler: Well, no issue was more controversial in the wake of Citizens United than this idea of corporations as people.
But the idea of corporate personhood is actually deeply embedded in the law. And it's just the idea that a corporation is its own independent entity in the eyes of the law, and it's separate and distinct from the shareholders or the employees or the investors in that company.
And that's why, if you slip and fall at a Starbucks, you have to sue the Starbucks company. You can't sue the individual investors.
Corporate personhood enables us to hold corporations accountable when they commit crimes or torts. When we sue BP for the oil spill in the Gulf, we're relying on corporate personhood to give us an identifiable body that we can sue and hold responsible.
I think what's gone awry, perhaps, in the Supreme Court in recent years is that the court has extended rights that don't seem to fit the business corporation of today, things like a right to influence elections, or freedom of religion, and giving corporations the ability to opt out of certain kinds of laws, things that just don't seem like they're part of that long history and tradition of corporate personhood.
For instance, in the Hobby Lobby case, the Supreme Court says a corporation has religious liberty and then says, well, we need to protect the religious liberty of Hobby Lobby's owners, the Green family.
William Brangham: This was the case -- for people who have not followed this, this was the Green family, who said that the Affordable Care Act requirement that they provide contraception to their employees violated their personal religious beliefs.
And you're saying that that -- that the court misconstrued that idea in that case?
Adam Winkler: Well, what the court did is, it pierced the corporate veil.
It didn't base the right -- the case on the rights of the corporate entity, but on the rights of the family behind the corporation. And when we understand that in terms of what corporate personhood really should mean, which is a strict separation between the business entity on the one hand and the people behind the business, we can see that Hobby Lobby actually rejected the principle of corporate personhood, rather than truly embraced it.
William Brangham: You write at the beginning of your book that you don't mean this to be a condemnation or even really a critique of this growing corporate rights.
But the cover of your book does have a wadded-up copy of the Constitution on it, which implies that the Constitution has been damaged here.
How do you weigh that?
Adam Winkler: Well, it is an arresting image on the cover. And so we love that.
But, in some ways, you might of the metaphor as being the opposite, that the involvement of corporations in American constitutional law has had some bad effects.
And Citizens United may be a perfect example of that, of expanding corporate influence over elections, where corporations don't belong. But, at the same time, corporate rights have also had a positive effect in some examples.
So, for instance, in the 1930s, when newspaper corporations were trying to fight back against censorship imposed upon them by Huey Long, the demagogue governor of Louisiana, they only were able to fight back against that censorship because they had a First Amendment right of freedom of the press.
William Brangham: A lot of readers asked questions that seem to struggle with this idea of, is this trend, is it irreversible? Do corporations now have these rights and that that's never going to change?
What is your sense from studying the long history of this?
Adam Winkler: Well, there is a movement afoot to amend the Constitution to eliminate rights for corporations.
And more than 19 states have endorsed some kind of constitutional amendment to overturn Citizens United. And if that amendment really gathers steam, then we might see corporations actually lose some of these constitutional rights that they have gained.
But I think we have to approach that issue with some nuance and at least some hesitation, in the sense that we don't want to deprive, for instance, The New York Times Company of its right of freedom of the press. And we don't want to deny any other company that has property rights over its inventory.
And the government can't come and, for instance, seize Coca-Cola's recipes and make its own Coca-Cola without paying just compensation. So we want to think about the role that constitutional rights do play in limiting government power. And, sometimes, that means protecting corporations.
William Brangham: The book is "We the Corporations: How American Businesses Won Their Civil Rights."
Adam Winkler, thank you very much for doing this.
Adam Winkler: Thank you.
William Brangham: We will continue this conversation online, where you can find it later on.
But, before we go, I want to introduce our Now Read This pick for November, the winner of the 2019 Pulitzer Prize in fiction. It's a novel about trees, our relationship to the natural world, and about activism and resistance. It's called "The Overstory." It's the 12th book from National Book Award winner Richard Powers.
As always, we will hope you will join us and read along with others on our Web site and Facebook page Now Read This, which is the "PBS NewsHour"'s book club partnership with The New York Times.