This is an area where much muddled thinking goes on.
The entire reason for having such things as “corporations” is not, as naifs think, to shield employees and stockholders from liability (although that is a side effect), but to be able to bind organizations to ordinary contract law, which is arguably the entire foundation of a modern (i.e. non-feudal) economy.
Let us say you call your cable TV company in a rage, because when your 8-year-old tot tuned in the Disney channel she got four hours of XXX porn, and you now have to answer a series of difficult questions about what that lady was doing with those men.
“Gosh, we’re really, really sorry about that,” says Carlos Danger the customer service guy, “And to make it up to you Cox is willing to waive your cable TV fees for the rest of your life.” Well, ok then.
But you get a bill just as always a month later, and, worse, it’s got $90.00 for 4 hours of XXX pay-per-view charges on it. When you call back…“Huh? Well, sorry Charley,” says Bill the customer service guy, “But you made a deal with Carlos, and Carlos quit 3 weeks ago. You’ll have to strike a new deal with me, and frankly I think you’re overreacting and can go to hell.”
But…but…you sputter, I thought I made a deal with Cox Communications, Inc.?? Oh didn’t you hear? The Supreme Court revisited “Citizens United,” and in tribute to the ingenious arguments of the panel of commentators from Reason magazine, decided corporations couldn’t ever be persons, period – and that means there is no making enforceable contracts with corporations as such. You can only make them with real people. Maybe you can get the CEO of Cox on the phone, and make a personal contract with him, since he’s likely to stick around longer than a customer service temp…
So that’s why we pretend, in some restricted cases, that corporations are “people.” So that real people (and even other corporations) can make contracts with them, and those contracts survive the departure of any or all employees who were around when the deals were struck. This is what allows the mighty economic machine of deal-making to roll on. Because GE is confident that when it cuts a deal with Boeing to supply engines for the 787 at a certain price and on a certain schedule, that contract will persist and be enforceable in court even if every single employee at Boeing and GE is replaced.
Once we put this idea in place, and see that it is useful to imagine a “life” of an organization beyond the life of its proprietor, it is not too strange to extend that to the realm of civil liability. If a corporation damages your personal interests (or that of another corporation), and the appropriate judicial response is monetary compensation, or injunctive relief (compelling certain behaviour, or the absence of other behaviour), we can see the sense in extending to corporations the same kind of civil liability individuals suffer.
For example, if a Cox service guy certified (inappropriately as it turns out) by a (inadequate, as it turns out) Cox training program leaves your panel in a weird non-code state and your cat is electrocuted and your lights go dark for two days, it makes some sense to extend civil liability to Cox, and demand that they compensate you for your cat and send a certified electrician out to fix your panel, at their own expense. Sure, we could limit liability to the Cox service guy, but is that really fair if he was doing his best and was relying on Cox corporate training and policy that said he was ready to go? Maybe not. Admittedly, this is going to be a harder line to draw than in the case of contract law: to what extent is an employee acting on his own, and to what extent as an agent of corporation, so that the corporation should take responsibility? That line can be hard to draw, but that’s what juries are for.
Now do we want to extend that idea to criminal liability? (Civil liability is responsibility for harm to individuals, criminal liability is responsibility for harm to society as a whole.) There are advantages, sure. We can do our regulation on the cheap by simply publishing guidelines and rules, and threatening any corporation that doesn’t follow them with massive fines or the equivalent of execution, which would be the dissolution of the corporation. But again, we’re going to have to draw a careful line between the liability of individuals and that of the corporation. Presumably we’re going to hand the responsibility to the individual unless it can be shown that he was executing corporate policy, with the knowledge of the corporation’s governing board. That he was an employee isn’t sufficient to establish corporate criminal liability. Another burden for juries.
And on to your question: do we have to worry about arresting corporations? Of course not. The only purpose of arrest is to be sure a criminal doesn’t evade the law by disappearing. (That’s why, after you have been arrested, if you can prove to a court’s satisfaction that you’ll turn up and place yourself under its jurisdiction, the court is generally required – by the ancient principle of habeas corpus – to let you go until your trial, or until you are required to present yourself for execution of sentence.) Obviously we have no need to do that for a corporation, because a corporation by definition can’t hide (a “secret” corporation or corporation “in hiding” makes no sense, since it could ipso facto do none of the things it would ordinarily do), and it can’t flee because it isn’t anywhere (or really is already everywhere).
This is an example of the dangers of taking an analogy too far, and too literally. No one suggests, or would rationally suggest, that a corporation is a person, literally. They only suggest that for certain legal purposes it is convenient to treat a corporation by analogy to the way we treat persons, because we have built up over the centuries a very large body of pretty successful legal traditions that work well to regulate the behaviour of individuals, and we can see ways in which that would work for corporations, too. But it’s always only an analogy, and it has clear limitations.
As for the famous “Citizens United” the issue isn’t the absurd caricature that the corporation is a person, hence willy nilly enjoys First Amendment rights, and can say whatever comes into “its” mind. It doesn’t have a mind. Nothing can come into it. There is no meaningful way in which a corporation can “say” things independent of the people in it.
Ah, but what about them? What about the stockholders, employees, and customers of the corporation? Don’t they have FA rights? Indeed they do. And what happens if they want to “pool” those rights (or rather the resources required to exercise those rights), so that they can speak with one (louder) voice? If you buy stock in GM, and you (as a stockholder) want GM to pressure President Obama to bail out GM, and all the other stockholders think so, too – why can’t you authorize the board of GM to pay for the CEO to fly to D.C. and beg the President for a personal audience, at which the case can be laid out in full? After all, that’s way more practical than organizing a GM stockholders’ march on Washington to demand a bailout (which your own personal FA rights allow you to do)?
What if you believe your city of Bell, California, is as corrupt at the day is long, and you want to broadcast that informatoin to voters effectively? You start a newsletter and, to cover expenses, sell subscriptions. You need to make contracts to buy newsprint (or host websites, whatever) so you incorporate. Is there any reason all the subscribers shouldn’t be permitted to voice their dissatisfaction with city goverment – a sacred FA right – in the most effective way possible (subscribing to your newsletter and leaving the publication details to you)? Do they really have to exercise their FA rights personally, or not at all? That seems…a little rigid.
There are, to be sure, purist arguments for saying that civil rights must be exercised by individuals, in person, or not at all, and if consistently maintained, they deserve respect. (The argument from convenience of the person who wants to suppress the “voice” of Boeing sharedholders but not employees belonging to Boeing’s machinist union in a political debate need not be considered, as it is cynical and intellectually constipated on first examation, and deserves nothing but contempt.) In some cases the purist arguments seem pretty compelling. Why would a corporation ever need Second Amendment rights the way an individual might? Ridiculous. No one will ever argue GE or Boeing have Second Amendment rights. But the FA is a much harder case, because of the tendency of human beings to want to organize their communications in order to speak with a louder voice. We form pressure groups, lobby groups, unions, newspapers, Facebook groups – all for the purpose of presenting our message more effectively by coordinating it with others. We already allow a great deal of our individual FA rights to be coordinated by corporations. (This is why the New York Times, Inc., can argue with a straight face that jailing one of its correspondents, or its editors, or disbanding the entire organizatoin for printing the Pentagon Papers, or the latest leak from Washington, is a violation of the FA.) “Citizens United” was merely the recognition that you can’t favor some corporations (e.g. New York Times, Inc.) over others more or less randomly, or some forms of speech (a bylined campaign-analysis article in the Times) over others (a signed political advertisement in the Times). The guiding principle is that of the Founders, that in the search for the truth, it is best to err on the side of allowing to much speech and public opinionation, rather than attempt to make law that says which speech is OK and which should be suppressed as dangerous. Other jurisdictions do not fully agree; you can go to jail in Germany for espousing Nazi principals – no FA applies! And even here, if your “free speech” involves dangerous advocacy of harm to individuals, or actions likely to cause harm (the proverbial “Fire!” in a crowded movie theater not actually on fire), it can be suppressed.
