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Comment by khazhou | Hacker News Reader

Corporations aren't people. You're misrepresenting Citizens United

The gp comment doesn’t seem to mention citizens united ... why bring it up in response to a comment about corporate personhood? It is almost completely non sequitur

Almost every modern reference to "Corporations are now people!" is a callback to Citizens United. If the commenter I replied to is not aware of and was not referring to that, I apologize. But... he probably was. A simple search for "corporation are people" or "corporate personhood" will bring up articles that immediately and extensively focus on Citizens United.

And/or to Mitt Romney saying "corporations are people, my friend" which happened around the same time and this was a big political topic. The idea of corporate personhood became popularized around this time.

Citizen's United is not the only case relevant to the idea of corporate personhood. There's a whole history of corporations earning rights usually reserved for people.

You can read the wikipedia page for "corporate personhood" if you want to learn more about the history of it and specific cases and rights afforded to corporations.

Since I just read about this in a course, the main reference (at least for Canada/UK/Commonwealth) is the Salomon case from 1895: https://en.wikipedia.org/wiki/Salomon_v_A_Salomon_%26_Co_Ltd

So, not new.

I think people overreact to hearing that corporations are (legal) "persons" when in fact they are not anything like natural persons (no body, no constitutional rights). As I understand it, directors and officers are the ones held personally liable in criminal matters, but corporations can still be liable for negligence and breach of contract etc. IANAL.

Sounds like it is different in the US. Does citizens united somehow make corporations more like people?

It did not, in the sense that it only clarified a constitutional issue. The crux is that while corporations are complex legal fictions, they are still ultimately property owned and managed by actual people with constitutional rights. Corporations inherit on incorporation the constitutional protections that the incorporators would have if they were acting directly. In the words used in the majority opinion of the court, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

> Corporations aren't people.

As per a former presidential candidate, they are, my friend.

https://www.nytimes.com/2011/08/12/us/politics/12romney.html

How should one interpret it then?

From the Wikipedia page: "Although the decision does not address "corporate personhood," a long-established judicial and constitutional concept, much attention has focused on that issue."[0]

"How should one interpret [the case] then?" Recognize that Citizen's United is _not_ about corporate personhood, and actually read what the case was about. The number of times I've heard people making snarky remarks about Citizen's United without having read anything about the case is amazing.

In the US, corporate personhood is about:

(1) Corporations having equal protection under the law as persons (ie the 14th amendment applies to corporations).

(2) Coporations having the same rights as persons to draft and enforce contracts, making them "legal entities". This is related to (3).

(3) "Person" as a concept applies to associations of people rather than just individuals; associations of individuals includes corporations. See here: [1]

None of these things were decided in Citizen's United and further, it had no legal bearing on the case law surrounding these things.

Instead Citizen's United was about whether a particular law violated the 1st Amendment. Specifically the law prohibited corporations from releasing media 60 days before an election if it could impact the results of that election by reaching 50,000 or more people in the electorate. But the 1st Amendment makes no distinction between e.g. newspaper companies and other corporations, so the majority opinion was that this law and other laws that limit speech of associations of people infringe on the 1st Amendment.

From the opinion: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

[0] https://en.wikipedia.org/wiki/Citizens_United_v._FEC

[1] https://en.wikipedia.org/wiki/Legal_person

That's all well and good, but 'frequentnapper did not actually say anything about Citizens United in the first place.

If corporations are people, we should jail them. If corporations aren't people, why do they have legal rights independent of the individual, jailable people who constitute them?

Seriously corporations have the right to pay fines with other peoples money instead of being jailed or executed. People of flesh and blood don't have those rights.

Compare Walmart committing bribery to me attempting to bribe my way out of speeding ticket.

>Compare Walmart committing bribery to me attempting to bribe my way out of speeding ticket.

But that is how the ticket industry works...you get the ticket, hire a lawyer, the lawyer “negotiates” a deal to plead no contest in exchange for no points and a lower $ penalty or at your option take traffic school ( a local private company that no doubt “bribes” its way in to those chushy exclusive county government contracts) and the court will dismiss your ticket like it never happened.

Read harder. You try to bribe a cop, you get arrested and you go to jail. If you have a buttload of money you can avoid jail. If not, you serve time. Then you are branded a criminal, forever.

Unlike Walmart which gets to stay a corporation in good standing. And it's executives who suffer no personal harm.

Read harder? Don’t resort to ad hominem attacks because you don’t know or understand the law.

Walmart allegedly bribed foreign officials they didn’t try to bribe the “cops” for bringing the bribery charges. Although you can’t distinguish the legal difference, it doesn’t mean there isn’t one.

Executives do go to jail quite regularly for bribery and companies can and are judicially dissolved also.

For example I was in Las Vegas during the Shot Show when the FBI rolled right into the convention center and arrested executives/VPs of Smith and Wesson for bribing an undercover FBI agent, posing as a African delegate, for a large government contract.

Or how about the VW executives arrested (and convicted) for the emissions scandal?

Or the drug company Executives and CEO recently charged with conspiracy to distribute controlled substances and defraud the US?

Except corporations don’t have equal protection under law. They have more protection than individuals because they’re a device for absolving individuals of personal liability. The only penalty we seem to want to subject them to for any kind of wrongdoing is a fine, which is often not enough to deter the activity that caused them to receive said fine.

We need to make fines meaningful, start holding C-level execs personally responsible in some cases, and bring back the only penalty that matters to an immortal and amoral legal entity: the death penalty, via revocation of the corporate charter. Only then will we see the behavior of corporations start to change.

Personally I suspect the corporate death penalty will be even more worthless than the actual one for deterrence. The corporate shield isn't supposed to apply to criminal conduct for participants in the first place.

Any investor should already treat them as disposable sources of revenue so crooked business actors would do the same. It would be like sentencing the gun to the death penalty and letting the robber go free. Instead pursue all those with actual power and liability who don't do the right thing and leave those who did alone as possible (it shouldn't stop enforcement) or reward them.

Otherwise they will be encouraged to "3S" (shoot, shovel, and shut up) their problems instead of cooperating or reporting.

OK, but the whole argument rests entirely on corporate personhood. Without it, the 1st amendment isn't even in play.

You’ve got it backward. It was the law that tried to use corporate personhood to subvert the first amendment. What Citizens United said is that you can’t deny groups of people their first amendment rights just because they’re acting through a corporation.

Human beings are allowed to organize for the purposes of political action and whether or not they decide to form a corporation doesn't matter because "corporation" isn't a constitutional concept.

Further, "personhood" means you can sue the corporation, it can hold property, etc. Lawyers usual call "corporate personhood" "legal entity."

> Human beings are allowed to organize for the purposes of political action and whether or not they decide to form a corporation doesn't matter because "corporation" isn't a constitutional concept

Sure it does - if I am killed by a natural person due to negligence, the state can imprison the person who killed me. If I am killed by a corporation due to negligence, the state generally does not imprison any individual, because of the "corporate veil." If you get rid of the corporate veil, then that's totally fine with me. (It's just like, if human beings wish to organize for political action, they don't get any more votes that way - they still only vote as humans.)

> Further, "personhood" means you can sue the corporation, it can hold property, etc. Lawyers usual call "corporate personhood" "legal entity."

So, one of the common effects of prison is deprivation of the right to property - you don't get to access your house or the stuff in it while you're in prison. This is generally considered to be an important part of the deterrence. Why don't we do the same to corporations? Let's say that Walmart doesn't lose any of the property it owns, but for a period of a couple of years, it loses access to it.

Another side effect of jail is a loss or at least serious restriction on communications privileges with the outside world, which we can also equally well apply to corporations. Why don't we say that this applies to corporations too? While Walmart is imprisoned, no communications on behalf of the company can occur, except for access to its lawyer.

Unfortunately, the way that corporations can own other corporations would render this moot, or at most, a mere matter of paperwork. Control of corporate assets would fall to the next highest "Corporation" in the chain, or, and this is a big or, if you went the more extreme route of forcing the assets/business into the stewardship of the State for the imprisonment term, the "life" of the corporation would need to continue as normal to meet the obligations the Corporation has toward vendors/shareholders, otherwise, they are out of what is rightfully theirs "without due process".

To meaningfully create a deterrent effect, there has to be a set of people who cannot avail themselves of the Corporate veil. That group of people would most reasonably be at a minimum the C-Suite, but frankly, I'm not sure you'd do anything but end up creating a practice whereby the "C-Suite" people end up becoming sacrificial, or are specifically structured into having some form of plausible deniability via isolation from information by underlings.

Corporations as a concept were extremely controversial, and rarely granted at first due to concerns of being able to absolve people of legal responsibility for actions undertaken under the flag of the Corp.

I think that a good middle ground would be that upon being judged against, a Corporation must for a period submit to serving a period in which their ability to operate is contingent upon the presence of State agents/regulators tasked with ensuring the previous behavior is remedied and no other problems exist. This includes all results of investigations into potentially illegal behavior becoming a matter of public record. This would have a satisfying parity with the practice of submitting to supervision by a parole officer.

There is some potential for abuse; but seeing as that system works just fine for petty crimes, I don't see why it wouldn't work for corporations.

There's also the bonus that it also in a way "punishes" shareholders by decreasing the opportunity for abnormal growth rates fostered by shady business practices.

Oh, one more thing.

Something may need to be done to prevent corporate engineering where assets are sold to other corporations, owned by a holding company, established for the purpose of buying out the sanctioned corporation's assets, poaching the employees, and effectively picking up where the last Corp left off, but cleaned of the government oversight. I'm thinking any liquidation or selling off of assets has to be handled through bankruptcy court.

You wouldn't necessarily want everyone staying, but I have the feeling no one would be comfortable with taking away the authority and mandate to clean up house from the Board of Directors, but I think the contents of their communique's w.r.t. the sanctioned corporation could become a (sealed for a time) matter of public record, with a State representative as a non-voting, or only tie-breaking vote on the Board

Anyway... My two cents.

> if you went the more extreme route of forcing the assets/business into the stewardship of the State for the imprisonment term, the "life" of the corporation would need to continue as normal to meet the obligations the Corporation has toward vendors/shareholders, otherwise, they are out of what is rightfully theirs "without due process".

This doesn't apply to imprisonment of humans, right? If I go to prison tomorrow, my employer is deprived of my labor, my skills, and my knowledge without due process and through no fault of their own. Sure, they don't have to pay me, but they're also not going to get back their investment in training me and the institutional knowledge I have of how stuff happens at my company. (I am at-will, as it happens, but I'm pretty sure this is not different if I had a fixed-term contract.)

If you make a deal with someone who goes to prison, and they can't execute on that deal, it's your own problem that you made a bad choice of deal partner. Sure, you can sue for breach of contract, but it won't actually get them to do the thing you were hoping they'd do anytime soon. Why is it different when the corporation is the person with whom you made that deal?

You're still making the mistake that legal personhood is literally being a person. People can go to prison. Abstract concepts cannot.

Then how can you apply rights usually reserved for people to a abstract concept?

You don't. That was the point of my post. Citizens United didn't grant corporations the rights of people and "corporate personhood" doesn't mean that anyway.

Nobody is talking about Citizens United (other than the people dragging it into the conversation just to point out that Citizens United is irrelevant).

Corporations already have the rights of people, because when corporations do crimes, the corporation, and not the people who constitute the corporation, is held legally responsible. What we are objecting to is that corporations are exempt from forms of punishment that are applied to natural persons. Either figure out how to make the punishment apply to corporations, remove that form of punishment from consideration for natural persons, or ignore the corporation for legal purposes and punish the humans behind the abstraction layer. It's pretty straightforward.

I literally just gave two ways in which we can meaningfully apply the concept of prison to corporations. If you insist on corporations being axiomatically unable to go to prison despite having a separate existence before the law from the natural people who comprise them, just admit that I'm a second-class citizen in your eyes, and then we can debate the way I's debate anyone who thinks I'm axiomatically a second-class citizen.

(Or get rid of prison for natural persons, I'm on board with that.)

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