Corporate Personhood: Just Speech, or Full Citizenship?

I am going to start this post off with a caveat: I am not an attorney, so anything I say has no basis in legal theory or practice. Nevertheless, our country was formed by individuals, not attorneys, for the people, nor for attorneys.

I am not particularly in agreement with the Supreme Court's decision in Citizens United that corporations, being citizens, have free speech rights. But it seems to me that if corporations have the rights of citizens they should also have the responsibilities of citizens. A human citizen has the right to free speech, but if that free speech causes harm, through slander or incitement to riot, he is then subject to civil and criminal penalties, if applicable. The same should be true of corporations. If a corporation has the right to speak on political matters, for example, that corporation should be subject to civil and criminal penalties for engaging in civil or criminal behavior.

The problem, or course, is that you can't send the corporation to jail like you can a human citizen. As a result, our justice department seems to be enamored with assessing monetary penalties for criminal behavior, which the corporation simple plans for and pays as a cost of doing business and which does not act as a deterrent to future bad behavior. Only if the bad behavior results in real damage to the bottom line, say by a user boycott or a drop in sales, does corporate behavior change. It used to be that corporate executives were held accountable. More than 1000 Savings and Loan executive went to jail as a result of the S&L crisis, but no executives have been jailed as a result of the 2008 Bank Crisis, and probably none ever will. The monetary penalties from the 2008 Crisis were nothing compared to the incentives that caused the banks to engage in the behavior that caused the crisis, so we are primed for it to occur again.

Right now we are watching the unfolding story of Volkswagen. In both the U.S. and Germany it has come to light that Volkswagen deliberately programmed software controls to fake compliance with emissions limits during testing but to cut out and not comply during normal driving. The President of Volkswagen just made a statement about the company not tolerating such behavior. Obviously it did tolerate that behavior, because it did program its vehicles to perform in that fashion. This is reminiscent of the cigarette companies knowing about the dangers of cigarette smoking or Johnson & Johnson knowingly marketing Risperdal which caused gynecomastia in males. As long as there is economic incentive to engage in immoral and or illegal behavior some corporations and businesses will do so.

The simple answer is corporate jail. A corporation that breaks the law should be jailed for a period of time, during which it could not engage in business. We have the concept of probation and parole, where individuals are restricted in their rights, instead of incarceration. A corporation could enter probation, where its behavior was scrutinized and any resumption of illegal behavior would result in the full penalty, corporate incarceration, or legal loss of charter, be applied.

No doubt the reaction will be: What about the jobs lost? What about the economic damage? Well, we deal with the same issues when a human citizen breaks the law. Corporations are "bigger citizens" in the sense that their behavior are larger. Well, that's the point. When corporations break the law, the impacts are bigger. Therefore, it is important that their behavior stay legal.