Abstract
In his 2007 Ethics article, “Responsibility Incorporated,” Philip Pettit argued that corporations qualify as morally responsible agents because they possess autonomy, normative judgment, and the capacity for self-control. Although there is ongoing debate over whether corporations have these capacities, both proponents and opponents of corporate moral agency appear to agree that Pettit correctly identified the requirements for moral agency. In this article, I do not take issue with either the claim that autonomy, normative judgment, and self-control are the requirements for moral agency or the claim that corporations possess them. I claim that if both of these claims are correct, then corporate moral agency entails that, in a liberal democracy, corporations should have the right to vote. I show that under the conception of democracy supported by most liberal political theorists, all parties subject to the law are entitled to the right to vote, and all parties that possess autonomy, normative judgment, and self-control are subject to the law. Therefore, if the proponents of corporate moral agency are correct, then corporations satisfy the requirements for the right to vote. I then consider potential objections to this argument. I show that the strongest objection to the corporate right to vote is undermined by Pettit’s own argument for corporate autonomy. I then show that objections derived from other arguments for limiting the rights of corporations are equally unavailing. I conclude with some observations about the implications of my argument for the question of corporate speech rights.
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Notes
See also Werhane (1988, p. 57). Note that the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) at least suggests that it is not logically impossible for corporations to have a right to worship as they please.
French explained,
I have written at length, over almost 20 years, in defense of the idea that business corporations should, in and of themselves, be treated as moral persons, members of the moral community. However, it has become clear to me from many of the questions and concerns prompted by my past use of the term "person" in reference to corporations, that calling corporations moral persons creates more confusion and misunderstanding than clarity…. To be a member of the moral community, to be a proper subject of ethics, something must be, at least, an actor. Human persons are a variety of actors. Human persons may have a number of traits, over and above being actors, that are not shared by other things that are actors (French 1995, p. 10).
Virtually the same point was made at a later date by Philip Pettit who gives the example of a robot that can act and have intentions, but is clearly not a moral agent.
Imagine the robot that moves on wheels around a table-top, using robotic arms to change the positions of various little cylinders that are strewn around the table. It scans the table with bug-like eyes and whenever it registers a cylinder on its side, then it moves towards that cylinder and uses its arms to raise it to an upright position. Even a robot of this simple kind can count as an agent. It has a single, on–off desire to keep the cylinders upright. It relies on its eyes to register when a cylinder is on its side, where exactly the offending object lies, and how it may be restored to an upright position. And then it acts so as to satisfy its desire according to that set of newly minted beliefs….
There are many ways in which the robotic agent might be more complex and might resemble more familiar animal systems. It might form beliefs about objects other than the cylinders and about properties other than those involving their location and orientation. It might form desires for conditions other than having those cylinders assume an upright position. And it might form beliefs and desires relevant to actions at a spatial or temporal remove; it might form intentions to do with other places or times. Such complexities would take it within reach of familiar, non-human animals (Pettit 2007, p. 178 (emphasis added)).
Indeed, in subsequent work with Christian List, Pettit altered the names of his conditions to more closely reflect their nature, calling them, respectively, normative significance, judgmental capacity, and relevant control. (List and Pettit 2011, p. 155).
French explains that “[i]t is the corporation’s CID structure that allows it to be an independent rational actor on the social scene…" (French 1995, p. 15).
Such secondary actions are true corporate actions because they “cannot be redescribed in terms of the actions of constituents” (Werhane 1988, p. 56).
For example, Copp posits a three member University tenure committee functioning under guidelines that require a professor to demonstrate excellence in the three areas of teaching, scholarship, and service to be awarded tenure. He shows that a tenure candidate could receive a majority of two votes for excellence in each of the three categories, and yet receive no votes for tenure because each committee member sincerely believes that the candidate has failed to achieve excellence in one area. Copp claims that denying tenure in such a case violates the University's own standard for tenure and is wrongfully unfair even though each member of the committee voted in a principled way in accordance with the University's rules and his or her own conscience (Copp 2007, pp. 379–380).
Or at least a proportional say (see Brighouse and Fleurbaey 2010).
I appreciate that not all political theorists are liberal theorists, and hence, that my argument is likely to leave some parties—for example, communitarian democratic theorists—unmoved. For purposes of this article, I will be satisfied if my argument is persuasive to the set of liberal theorists who are also proponents of corporate moral agency.
For example, American corporate law clearly affects the interests of German businesses even though the German businesses are not subject to that law.
The situation of foreign visitors or resident aliens presents a problematic case for this analysis. Such visitors and aliens appear to be subject to the law, but not necessarily entitled to the vote. However, with regard to temporary visitors, the explanation may simply be that their interests are not sufficiently affected to qualify for the franchise. And with regard to long-time resident aliens, it is a matter of some controversy as to whether they should have the right to vote.
Historically, alien inhabitants did have the right to vote in many states (Rosenberg 1977, pp. 1093–1100). The association of voting rights with citizenship was originally an effort to expand the franchise by extending it to all citizens, rather than limiting it to property owners, the wealthy, or white men (Beckman 2006, pp. 154–155). It is only beginning in the nineteenth century that citizenship has been seen as a limitation on the scope of the franchise, and this was often motivated by anti-immigrant biases that cannot withstand moral scrutiny (Rosenberg 1977, pp. 1097–1100).
Hence, there is good reason to believe that despite the contemporary treatment of resident aliens
[w]hat determines a person’s political rights is simply that of being subjected to the legal authority of the state. This idea is congruent with the wordings found in the electoral laws of the pre-revolutionary American states, where the law referred to the "inhabitants" rather than the more exclusive notion of "citizens" in order to delimitate the right to vote. It also reflects the notion, commonly invoked in debates over the extension of the franchise in the nineteenth century, that "those who bear the burdens of the state should choose those who rule it" (Beckman 2006, p. 163).
(See also Goodin 2007, p. 48; Bauböck 2005).
The same reasoning can explain the disenfranchisement of convicted felons. In many jurisdictions, felons who have served their sentence are subject to the law but are nevertheless prohibited from voting. However, this may not constitute a counterexample to the all affected principle as much as it does an example of an unjust, illiberal policy improperly maintained by the governments of the relevant jurisdictions.
In recognition of considerations such as these, Dahl subsequently supplied a more refined version of his Principle of Affected Interests that he called the Strong Principle of Equality, which states, "[t]he demos must include all adult members of the association except transients and persons proved to be mentally defective" (Dahl 1989, p. 129).
See, for example, List and Pettit (2011, p. 176), where they state that corporations "are positioned to make normative judgments about the options they face and have the necessary control to make choices based on those judgments."
I must add the important caveat that this assertion applies only to corporations that satisfy Pettit's three criteria, not to all businesses that are corporations as a matter of law. Many corporations are merely legal shells that are fully controlled by one individual or a small group of people with univocal interests. For example, many sole proprietorships, companies with only one shareholder, and closely held family businesses incorporate purely for tax reasons or to gain other legal advantages. Such corporations are not truly corporate entities, but merely alter egos for the individuals seeking the shelter of the law.
Such "corporations in name only" do not possess corporate autonomy as defined by the advocates of corporate moral agency. This means both that the advocates of corporate moral agency are not committed to treating them as moral agents that are distinct from the individuals who control them and that they do not possess the characteristics that give rise to the right to vote. Thus, neither the position taken by the advocates of corporate moral agency nor the claims that I make in this article entail that individual "voting entrepreneurs" could receive multiple votes simply by repeatedly filing legal incorporation papers. The only corporations that would be independent moral agents and receive the right to vote would be those that were true group agents as Pettit and the other advocates of corporate moral agency define that term.
I am grateful to Professor Thomas Donaldson of The Wharton School and one of my anonymous reviewers for calling my attention to the need to address this possibility.
An interesting implication of the appeal to normative individualism is that it would apply not only to List and Pettit's argument against the equal rights of corporate persons, but also to their argument for corporate moral agency. In other words, whether corporations should be treated as morally responsible agents would be determined by whether such treatment would be good for individuals. For an extended argument that treating corporations as morally responsible agents is not good for the individual members of society, see Hasnas 2016, available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2428853.
According to the Census Bureau, there were 3,677,423 corporations in the United States in 2013 (excluding S-corporations). Of these, 2,867,764 or 78 % had nine employees or less, 2,400,727 or 65 % had four employees or less, and 1,440,521 or 39 % had zero employees, Non-employer Statistics by Legal Form of Organization, U.S. Census Bureau, http://factfinder.census.gov/bkmk/table/1.0/en/NES/2013/00A1 (last visited Feb. 12, 2016). Only 10,593 corporations or .3 % had more than 500 employees, and only 3611 or .1 % had more than 1000, County Business Patterns by Legal Form of Organization U.S. CENSUS BUREAU, http://factfinder.census.gov/bkmk/table/1.0/en/BP/2013/00A2 (last visited Feb. 12, 2016). Including all businesses in the United States whether incorporated or not, there were only 1964 with more than 5000 employees and only 974 with more than 10,000 employees, representing .03 and .01 % of total business organizations in the United States, Statistics of U.S. Businesses-Larger Employment Sizes, U.S. CENSUS BUREAU, http://www.census.gov/econ/susb/(last visited Feb. 13, 2016).
Recall that a large percentage of corporations are nominal corporations that are not true group agents and would not have the right to vote.
It is, of course, true that the right to freedom of political expression need not be derived from the right to vote. There are other equally good grounds on which to support the existence of such a right. However, because in the present context I am exploring only the implications of the corporate enfranchisement, I focus exclusively on the argument that a right to freedom of political expression is inherent in the right to vote.
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Acknowledgments
The author wishes to extend his thanks to Alexander McCobin for stimulating his thinking about the rights of corporations and Amy Sepinwall for causing him to put those thoughts in writing with her invitation to join a panel on “Business, Money, Politics” at the 2014 Society for Business Ethics annual conference. The author also wishes to thank Jason Brennan, Kendy Hess, Ann C. Tunstall of SciLucent LLP, and the participants in the Zicklin Center Normative Business Ethics Workshop at the Wharton School for their comments on a draft of this article and Annette Hasnas of the New School of Northern Virginia and Ava Hasnas of the Oakwood School for providing first-hand experience of the unanticipated consequences that can arise from attributing full moral agency to entities that may not possess it.
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Hasnas, J. Should Corporations Have the Right to Vote? A Paradox in the Theory of Corporate Moral Agency. J Bus Ethics 150, 657–670 (2018). https://doi.org/10.1007/s10551-016-3172-0
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DOI: https://doi.org/10.1007/s10551-016-3172-0