Corporations As People: Guns, Free Speech, Contraceptives, and Hypocrisy

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Corporations As People: Guns, Free Speech, Contraceptives, and Hypocrisy

Republican lawmakers have recently attacked some of the country’s largest banks, which have sought to limit their exposure to the manufacture and sale of guns, on the grounds that such moves violate clients’ Second Amendment rights. Strangely, these same lawmakers have  vociferously defended corporations’ right to free speech, especially in the form of unlimited political contributions, and to ban provision of contraceptives under employee medical insurance plans, based on their belief, backed up by two Supreme Court Decisions, that the law should treat corporations as people.

Not all rights are, or can be, equal. Much Constitutional jurisprudence in the U.S. has to do with navigating fine lines between one set of rights and another and one group of rights-holders and another. The rights of victims or the rights of the accused. The right to free speech or the right to protection from bullies and racists. Every society must draw its own lines, based on its own history. In Germany and most of Western Europe, use of Nazi symbols is illegal, rights to privacy trump “the public’s right to know,” and the state has considerable freedom to crack down on what it considers dangerous cults, like the Scientologists.

In the U.S. we draw the lines differently, but there used to be a rough and ready sense of which rights were more important than others. For example, even when the Bill of Rights was ratified in 1791, most people probably thought that the First Amendment, guaranteeing freedom of speech, assembly, and the free exercise of religion, should take precedence in practice, if not in law, over the Third Amendment, which states that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Whatever consensus there may once have been on the hierarchy of rights in the U.S. has taken a beating of late. The New York Times reports that Congressional Republicans are taking aim at commercial banks that have begun to restrict financing for companies in the business of making and selling firearms, as a response to the numerous, well-publicized mass shootings in recent years. Senator John Kennedy, a Louisiana Republican on the banking committee, has announced plans to file complaints with the Consumer Financial Protection Bureau against banks that “are effectively restricting gun sales by setting their own rules on legal products and refusing to do business with gun makers and retailers.” He and Republican colleagues are drafting legislation to stop what they consider unlawful discrimination.

The measures introduced by banks, which include Citigroup and Bank of America, are more an expression of sentiment than a fatal broadside against the gun industry. They include a refusal to offer investment banking services or process credit card transactions for new retail clients that sell guns to people younger than 21 or who sell bump stocks and high-capacity magazines (Citigroup), and a ban on lending to manufacturers of military-style weapons such as AR-15 rifles, the weapon of choice for mass shooters (Bank of America). Citigroup’s new policy, for example, applies only to new clients, and is unlikely to make a dent in sales by outfits such as Gearfire, a nationwide network of gun shops that claims to be the “world’s largest online guns, ammo, and firearms retailer,” whose online store offers dozens of models of semiautomatic versions of AK-47, AR-15, and M4 rifles, 75-round drum magazines, and “buffer stocks,” which appear indistinguishable from the bump stocks used by the Las Vegas shooter to allow his weapons to fire nearly as many rounds per second as a machine gun.

Pennsylvania Republican Senator Pat Toomey said he was “still thinking through this, because I generally don’t like to tell businesses how to conduct their business,” but allowed that it would be problematic if the major banks “decided that they were going to practically shut down a perfectly legal industry.”

Toomey, however, had been effusive in his praise for the 2014 so-called “Hobby Lobby” ruling by the Supreme Court that closely-held, for-profit businesses could deny, on religious grounds, the Obamacare mandate that included contraceptives in all approved health insurance plans. Calling it “a victory for religious liberty,” Toomey expressed his gratitude to leadership of the Hobby Lobby Corporation and its co-plaintiff, Conestoga Wood Products, a Pennsylvania company, for “challenging this ill-conceived mandate.”

Unlike Conestoga and Hobby Lobby, Citigroup and Bank of America are not closely-held corporations whose owners might plausibly claim to have shared and deeply-felt religious convictions. But the relatively narrow ruling in the Hobby Lobby decision was based in part on the 2010 Citizens United decision in which the Supreme Court effectively ruled that corporations have most of the same rights as people – including free speech, manifested as the right to spend unlimited amounts of money in direct support of candidates in federal elections, and in Mitt Romney’s famous remark that “corporations are people too.”

So the politicians who think banks should not have the right to decide whether and how they will provide financial services to the gun industry believe that corporations have every right to use their resources to support political candidates, or to deny their employees insurance coverage for perfectly legal medical procedures and prescriptions.

What if a major corporation decided that, as a legal person, its right to bear arms could not be infringed, and extended that right not only to bump stocks but to tanks, cruise missiles, and tactical nuclear weapons? What if that corporation were, say, Academi, the private security services firm owned by Erik Prince, founder of the infamous Blackwater, or CoreCivic, formerly Corrections Corporation of America and the largest private operator of prisons in the U.S?

What would Congressional Republicans do if chickens like these came home to roost? If their spinelessness in the face of President Trump’s previous assaults on the Constitution are anything to go by, not much. But they should remember that, even if corporations like are legally people, they’re not the kind you’d want to invite to dinner, date your daughter, or negotiate with your government.

About The Author

Managing Partner of Koios Associates, an advisory firm specialized in doing business in emerging and frontier economies. Over 25 years of experience in more than 60 countries in Africa, Asia, the Caribbean, Europe, North America, and the Middle East.

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