Thom Hartmann: Roger Pilon is with us, from the Cato Institute. He is the Vice President for Legal Affairs, the B. Kenneth Simon Chair in Constitutional Studies, Director at the Center for Constitutional Studies at the CATO Institute, cato.org, of course their web site. And we have been talking about the Citizens United vs. FEC case, the initial arguments were just concluded. We’re not sure where Roberts and Alito are going to go on this, the Kennedy, Scalia and Thomas are pretty explicitly calling for the court to change 100 years of precedent. Roger Pilon, welcome to the show.
Roger Pilon: Thank you, good to be with you.
Thom Hartmann: Good to have you. Why does Cato, or why do you for that matter, believe that a non-living creature of government, a corporation, something that we the people collectively allow to come into being, should have the same rights as you or I as living, breathing human beings and citizens of the United States?
Roger Pilon: Well, let me first correct your lead-in, Thom, because that’s not what was before the court, whether corporations should be allowed to contribute directly to campaigns and therefore overturn over 100 years. That’s a misunderstanding that comes from a number of journalists who don’t know what they’re talking about. Now to your question, what do you mean to say ‘we created the corporations?’
Thom Hartmann: Well, let me back up then. If you’re saying that my understanding of this is wrong, correct me.
Roger Pilon: The only issue before the court was whether, with respect to the Citizens United case, where the so-called electioneering communications provision of the McCain Feingold law should be struck. That’s a provision that prohibits people from even mentioning the name of a candidate 30 days before a primary or 60 days before…
Thom Hartmann: That was before the court in the spring. But then, back in the fall, and take this back to Austin. Don’t just argue based on McCain Feingold.
Roger Pilon: The Austin case, oh sure, I was about to go with that next. And that is to say the Austin decision was about whether it was not at all about whether companies could make direct contributions to candidates, it was rather with respect to a state ban on corporations engaging in independent political expenditures. And that’s the issue in the Austin case.
Thom Hartmann: Right, but don’t you think, Roger Pilon, that there is a possibility that what is going to come out of this is the striking down of 100 years of precedent?
Roger Pilon: No. First of all, that issue again, was not before the court. The issue, and by the way it’s not a possibility, it’s more like a probability, almost a certainty after oral argument this morning that they’re going to strike not only those electioneering provisions in McCain Feingold, but also to reverse the decision in Austin. But again, that doesn’t have anything to do with this 1907 decision relating to corporations paying, contributing directly.
Thom Hartmann: That wasn’t a decision, that was a law.
Roger Pilon: Well it was upheld, in subsequent litigation. We’re talking about the Tillman Act. And then in 1947 the same restriction was placed upon labor unions.
Thom Hartmann: That’s correct, with Taft-Hartley.
Roger Pilon: But to get back to your main point, why do you say that we created corporations? Corporations are created by individuals.
Thom Hartmann: No, corporations are created when you walk into the office of the Secretary of State and say I’d like to create a corporation and file the articles of incorporation and the Secretary of State, as an agent of the government, says okay, we will accept these papers and in return, and we will grant you certain limitations of liability and other tax benefits and what not.
Roger Pilon: That is one of the great myths that's known as the 'creature of the state' myth.
Thom Hartmann: I’ve created a bunch of corporations, they’ve always worked that way.
Roger Pilon: What’s that?
Thom Hartmann: I’ve created several corporations in my life, and it always worked that way.
Roger Pilon: All the state is doing is recognizing the entity of the corporation. That’s all it’s doing. You can have a corporation operating that doesn’t have recognition. I wrote, in fact, a 126 page article on the theory of the corporation for the Georgia Law Review many years ago that laid out the contract theory of the corporation. Which was the theory, before the advent of general incorporation laws in the 19th century. But all those laws do is provide for a state recognition of a corporation that has already been created by the private parties who bring it into being.
Thom Hartmann: Ok, I won’t dispute that, I think we’re splitting hairs. It was in December of 1601 that Queen Elizabeth first chartered the East India Company and really established that concept of limited liability. Arguably.
Roger Pilon: That was a public corporation, not a private corporation.
Thom Hartmann: But to the point, rather than getting caught in the weeds here, in the half a minute we have left, why… Do you think that a corporation should have the rights of a person?
Roger Pilon: Absolutely with respect to the use of the funds of the corporation, because a corporation is nothing more than the entity through which the owners of the corporation speak.
Thom Hartmann: Why not limit that speech to the owners?
Roger Pilon: The owners are the shareholders. And if they want to speak through their corporations in order to enhance their speech, that is exactly what the right that’s protected under the first amendment should enable them to do.
Thom Hartmann: You think that was envisioned by the founders?
Roger Pilon: I do indeed think that this was envisioned by the founders. They meant the first amendment to protect, especially, political speech.
Thom Hartmann: I guess we’ll have to disagree on that. Roger Pilon, cato.org the web site. You can read the amicus brief that has been filed in this case by Ilya Shapiro I believe. Thank you very much for being with us, Roger.
Roger Pilon: You’re welcome.
Transcribed by Suzanne Roberts, Portland Psychology Clinic.
