Can Towns Bar Chick-fil-A From Opening New Stores for Its Explicit Anti-Gay Stance?

The owner's anti-gay crusade is funded in large part straight from Chick-fil-A corporate coffers.

The dust-up between Chick-fil-A and the mayors of Boston and Chicago finally got interesting on Monday when it turned into a debate over corporate personhood.  

I had a chance to weigh in on the topic on The Big Picture with Thom Hartmann last Friday when I was asked if I had a problem with what the mayors did. I gave a simple response: “No.”

But then I elaborated, pointing out that the mayors were well within their right to threaten Chick-fil-A, however, if Boston or Chicago took the next step and actually denied licenses to the fast-food giant, then there could be a problem with discrimination and government overreach.  I now know I was wrong.

On Monday, Lee Fang, investigative reporter at the Nationexposed the mistake many progressives, myself included, had made on this issue. First, as Fang pointed out, the Chick-fil-A controversy has nothing to do with the views of CEO Dan Cathy and his family’s hefty contributions to anti-gay hate groups like the Family Research Council. The Cathy family has every right to spend millions discriminating against gays and lesbians, just like consumers have every right to choose not to eat at Chick-fil-A knowing the restaurant’s religious agenda goes beyond just closing on Sundays.  

The problem, however, is that it’s not just the Cathy family that’s donating to hate groups; the Chick-fil-A corporation is as well. As Fang reveals, the Cathy family’s anti-gay crusade is funded in large part straight from Chick-fil-A corporate coffers. In fact, Chick-fil-A and its corporate affiliates donated more than $19.5 million in 2010 to the Cathy family’s charity, which acts as a vehicle to funnel money into anti-gay hate groups.  

So Fang asks:

If a corporation uses its general treasury funds to finance political advocacy, does that mean any politician that takes action against that corporation in response to that advocacy is violating the First Amendment? It’s a question that comes down to whether you believe corporations have rights akin to human beings.

While Fang largely leaves the question open-handed, I’ll close it. I don’t believe corporations are people, nor do a growing number of progressives, libertarians, Democrats, and even Republicans who’ve all recently joined movements like Move to Amend to overturn the doctrine of corporate personhood. As many as 280 cities and six states have passed resolutions to overturn the Supreme Court’s Citizens United decision, and many have gone a step further to overturn corporate personhood altogether.

I don’t believe corporations have a right to free speech, nor are they protected from discrimination like actual people (except for gays and lesbians, who can still legally be discriminated against).  

On that premise, I believe a corporation like Chick-fil-A can legally be barred from opening up shop in a city where citizens have come together, elected a government, and passed laws keeping specific corporations out of the city limits.  

Now enter Salon columnist Glenn Greenwald. Within two hours of Fang posting his column questioning the personhood of Chick-fil-A, Greenwald posted his own column slashing Fang and saying, “I have a question for him and those who think like him.”

That means a question for me.

Greenwald begins first by arguing all nine justices on the Supreme Court have affirmed corporate personhood and agree that corporate speech is protected under the First Amendment.  

He’s right, but it’s not saying much. On one of the few issues that Rand Paul and I agree on, I don’t consider the Supreme Court the final arbiter of what’s right and wrong. While SCOTUS has ruled that corporations are people, it has also ruled that people are property – think Dred Scott. And of course, anyone saying, “Well, the Supreme Court has spoken, let’s live with it,” one day after the Dred Scott decision would clearly have been on the wrong side of history.  

Plus, never mind the fact that the very first Supreme Court case to enshrine corporate personhood into law was Santa Clara County v. Southern Pacific Railroad in1886. In that case, not a single judge ruled in favor of corporate personhood, yet a court reporter with ties to the railroad barons slipped the doctrine into the headnotes of the case. Though headnotes having no official legal standing, this particular headnote has been the basis of corporate personhood precedent ever since.  

But Greenwald knew affirming corporate personhood just because SCOTUS says so wasn’t the strongest argument. He asks to “leave aside” that fact and instead jots down a few hypotheticals, examples of the dystopic future our nation is headed toward if corporations weren’t given personhood rights. As Greenwald argues:

I’d like everyone to suppose that the following actions are taken by the state, and then for each, tell me whether you believe it would or would not be constitutional:

Congress enacts a law that states: No business incorporated in America, whether for-profit or non-profit, shall be permitted to donate any of its money to groups espousing liberal ideas. Any business found to be in violation of this prohibition shall be guilty of a Class A felony. Corporate donations to groups espousing conservative causes shall still be permissible and legal.

Greenwald rattles off a few more similar hypotheticals, basically arguing that if corporations didn’t have First Amendment rights like people, then governments would be allowed to discriminate against certain corporations – even going as far to conduct audits, searches and seizures on corporations that held different politics than whichever party was in control.  

Now, I’m a big fan of Glenn Greenwald and agree with him on most issues. But on corporate personhood, he’s dead wrong.

First, in regard to his hypotheticals: Yes, I believe those hypotheticals are indeed constitutional. In saying as much I’ve been accused of being both a “repulsive authoritarian” and an “anarchist.” Greenwald even called me a “Bush follower.” 

But take the hypothetical cited above, it sounds remarkably similar to this law, which is still on the books (but not enforced):

Be it enacted, that it shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any State legislature of a United States Senator.  

That text is from the 1907 Tillman Act, passed by President Teddy Roosevelt who was neither a repulsive authoritarian, nor an anarchist, nor a “Bush follower.”

Roosevelt wanted the law to go even further, telling Congress in 1905, “Not only should both the National and the several State Legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation…”

The only difference between Greenwald’s extreme, dystopian hypothetical law and the actual law known as the Tilman Act is that Greenwald’s hypothetical discriminates against certain corporations, whereas the Tilman Act discriminates against all corporations.  

If Greenwald’s arguments hinge on fear of government overreach, then he should be more horrified by the Tilman Act than he is by the decision made by the mayors of Chicago and Boston. The Tilman Act completely freezes so-called corporate “free speech” – locking corporations out of protections guaranteed under the Constitution to people. The mayors just wanted that speech moved elsewhere.  

Maybe he is. If so, I’d rather be on Roosevelt’s side of this issue than Greenwald’s since Roosevelt was well aware of the corrosive influence of money in politics, having seen it played out during the robber baron era. Yet, Greenwald seems to be ignoring that same reality in his defense of corporate free speech, just as corporations are ramping up to spend more than a billion dollars in our upcoming elections.  

In mind-blowing irony, Greenwald is defending the rights of corporations to buy politicians, then advocate for laws that break up unions that will essentially have the same free speech chilling effect he’s railing against. 

The other argument Greenwald may be making is that we must give absolute free speech to all corporations in order to prevent future governments stepping in and discriminating against particular corporations. It’s not so much the chill of free speech that Greenwald warns about as much as the fear of political parties rigging the game by eliminating private institutions that fund or coordinate with their political opponents.    

That’s a flawed argument. To begin with, a complete ban on all corporate election or issue advocacy spending would have the same effect as no ban on corporate election or issue advocacy spending in curbing discrimination. Discrimination can’t spring up if both liberal and conservative corporations are already banned from spending money.    

Second, what Greenwald and the corporate personhood sympathizers suggest is that governments are somehow doing harm to corporations by discriminating against them. It probably doesn’t need to be said, but corporations can’t feel pain, they have no emotions, they don’t die. They are fictional entities created under law to give them access to courts and for governments to be able to tax them.  President Grover Cleveland perhaps put it best in his 1888 State of the Union Address when he said corporations should be “the carefully restrained creatures of the law and the servants of the people.” I won’t weep for denying corporations like ExxonMobile constitutional rights.  

Having said that, I can foresee a problem arising from certain forms of discrimination against corporations. Here’s a hypothetical:

A State Legislature enacts a law that states: Any corporation that employs more than 50% minorities or generates more than 50% of revenue from minority consumers shall be revoked of any business license or permit to operate within the state boundaries.

Clearly, this law could have devastating effects. But is the solution constitutional? Does it follow that we must grant corporations the same rights as people to defend against this? No.

The solution, should the people feel inclined to act, is to pass laws that prevent discrimination against corporations based on the race, religion, or sex of the owners, workers, or consumers affiliated with that corporation. Federal laws if need be.  

In passing a law like this, corporations are safe from the worst forms of discrimination, yet are still restrained by “we the people” and not on equal footing under our Constitution.  

Also, laws can be passed preventing unreasonable search and seizure against corporations, without also giving them personhood rights – particularly unfettered access to the Fourth Amendment. It’s in the same way laws can be passed to protect animals and pets, without giving them complete personhood rights, too.  

Simply put, there are ways to deal with Greenwald’s hypotheticals beyond just giving corporations personhood, which has proven to be a complete disaster, and which I would argue underpins most of the problems facing our nation today as outlined in several books – beginning with Thom Hartmann’s book Unequal Protection– and vocalized during the Occupy movement.

By supporting corporate personhood to prevent corporate discrimination, Greenwald is committing America to a Faustian deal in which the heart and soul of the nation is sold to corporate oligarchs who are polluting our skies, denying us health insurance, and spying on us.  

In one of his final arguments against people like me who are challenging his embrace of corporate personhood, Greenwald quotes Thomas Paine who wrote in 1795:

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

I would assume that Greenwald knows the true story of the Boston Tea Party and the fact that our nation revolted as much against corporate power as it did an absolute monarch. Yet, Greenwald outrageously mischaracterizes the view of some of our most influential Founding Fathers like Jefferson, Madison and Paine who early in the days of the new republic wrote exhaustively on protecting the people from aggregated wealth in the form of aristocracy or corporations. Heck, every single one of the 13 colonies was originally founded as a corporation – hence, the vigilance against too much corporate power.    

Our nation has a long history of restraining corporations, from denying them free speech to revoking their charters if they operate against the public good, to forcing them to recognize organized people in the form of labor unions. One could even argue that American history has been a two-century-long struggle between organized people (democracy) and organized money (corporations), with liberal institutions protecting the former and market forces consolidating the power of the latter.  

To give organized money the same rights as people, as Greenwald argues for, is to enable them to speak louder in our democracy, have more leverage in our economy, and erode our national sovereignty. All things I would assume Glenn Greenwald would be adamantly against.  

As a freedom fighter, let’s hope he reconsiders his stance.      

Sam Sacks is a former Democratic staffer on Capitol Hill.  He's now the senior producer on The Big Picture with Thom Hartmann airing weeknights at 7pm EST on Free Speech TV and RT America.