“Corporations are people, my friend,” Mitt Romney famously said in 2011 while running for president. The Supreme Court decided the previous year that corporations could give money to political campaigns, just like people, and in 2014, the high court gave corporations religious freedom to deny contraceptives to employees, thereby letting them behave just as badly as people. If you prick corporations, do they not bleed?
Actually no, they don’t. But as of now, they can get presidential pardons.
The notion that corporations are people did not originate with the Supreme Court’s notorious Citizens United decision in 2010. Way back in 1886, the high court ruled in Santa Clara County v. Union Pacific Railroad that corporations were covered by the Fourteenth Amendment’s guarantee of equal protection under the law. To be more precise, this question was addressed not in the decision (which resolved a local taxation dispute) but rather in a headnote that said the court “does not wish to hear argument on the question” of whether the Fourteenth Amendment applies to corporations because “we are all of the opinion that it does.“ Somehow this non sequitur became legal precedent. “Later cases,” wrote Stetson University law professor Clara Torres-Spelliscy in a 2014 analysis for the nonprofit Brennan Center for Justice, “uncritically cited the headnote as if it had been part of the case.”
You know what isn’t declining? Pardons for corporations. Trump has granted nine. These were never a thing before Trump—not in the modern era, and possibly never. According to Bloomberg’s Ava Benny-Morrison, the nine pardons wiped out $200 million in financial penalties, “some of which were destined for victims of wrongdoing.” Frank Bowman, a law professor at the University of Missouri, told Bloomberg: “In any previous era no president would touch this with a barge pole. Maybe individual cases with some compelling reason, but the systemic elimination of criminal liability of major financial crime would never have happened before, and it didn’t.”
Half of the $200 million in wiped-out fines can be attributed to a single crypto company, BitMEX. The three co-founders of the company, a pioneer in crypto derivatives, all pleaded guilty in 2022 to violating the Bank Secrecy Act, which requires maintaining certain safeguards against money laundering. Each paid $10 million in fines. Then, in July 2024, BitMEX itself pleaded guilty to the same crime, and this past January the company was fined $100 million.
How does that change the current law, though?
I'd be in favor of a rule that explains that organizing into associations doesn't change the rights of the individuals who form the association, but also that the association would only have rights that relate to the actual purpose of forming the association in the first place (whether it's a corporation, LLC, partnership, joint venture, other unincorporated associations).
So a church gets religious freedom. But a sandwich shop does not. A newspaper gets freedom of speech and may exercise editorial discretion on what goes on its pages. A telephone company does not, and cannot discriminate against the viewpoints expressed over its phone lines.
There are trickier issues: can a government ban halal slaughter, and would a Muslim-owned butcher shop be entitled to a religious exemption (if, assuming, individuals were granted that exemption)? I'd argue you have to look to the nature of the business or organization to determine whether that particular right applies to that organization, so the butcher shop can invoke the religion of the human butcher, and possibly even the human customers who want to buy halal meat.
But the framework makes sense to me, and is closely related to the principle of organizational standing, where something like a nonprofit association of apple growers can sue on behalf of apple grower rights, despite not being an organization that actually directly grows apples. That's how corporate rights should work: look to the reason for incorporating and the nature of the organization, and how it relates to the nature of the right at issue.
How does that work with indie pharmacies and birth control, or bakeries asked to decorate pro/antitrans cakes?