“Corporations are people, my friend,” said Republican presidential candidate Mitt Romney last year while campaigning in Iowa.
That legal principle, upheld by the U.S. Supreme Court, has allowed corporations to enjoy the same rights as human beings, even though they clearly are not flesh-and-blood entities.
That legal principle has come into play in Entergy's latest federal lawsuit against the state of Vermont.
Entergy claims that Vermont violated the U.S. Constitution when the Legislature passed an increase to the state's nuclear electricity generation tax which would up the amount that the Vermont Yankee nuclear power plant in Vernon would pay in taxes, from $5 million to $12.5 million.
The state maintains that this tax - $0.0025 per kilowatt hour - is reasonable and that Connecticut charges the same rate. The tax is also less than the $0.003-per-kilowatt-hour generation tax that Vermont imposes on wind-energy projects.
Entergy maintains that the state violated the Constitution in four separate ways with the new tax.
• Vermont violated the supremacy clause, which places federal authority above that of a state, by interfering with the operation of a federally licensed nuclear plant.
• Vermont violated the commerce clause, which forbids states from interfering with interstate commerce, since Vermont Yankee has been selling its power exclusively to out-of-state customers since the expiration of previous power-purchase agreements earlier this year.
• Vermont violated the contract clause, by preventing Entergy from extending its previous contracts.
• Finally, Entergy asserts that Vermont violated the equal protection clause in the 14th Amendment, which provides all people with equal protection of the law.
Since Entergy, like all other corporations, is considered a person in a court of law, it claims that Vermont violated its corporate right to equal protection and that the tax represents an attempt to discriminate against it.
Cheryl Hanna, a constitutional law professor at Vermont Law School, told VTDigger.org last week that she believes that in light of Entergy's first lawsuit against Vermont over the state's regulatory authority, “I think Entergy has a fairly good argument that this is just another attempt by the state to pre-empt federal law and shut down an otherwise viable power plant.”
And Hanna said the strongest of Entergy's four constitutional arguments is its invocation of the equal protection clause.
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The kicker in this case is that if Entergy wins, Hanna said, Vermont's taxpayers will have to pay Entergy's legal fees. Under federal law, if a state is found to have violated the constitutional rights of an entity, that entity is entitled to be reimbursed for legal fees.
You can argue about the merits of the tax increase on Vermont Yankee is justified, or whether having two lawsuits against the state is judicial overkill by Entergy. But on principle, it is most offensive that this company is invoking the 14th Amendment, originally enacted after the Civil War to grant citizenship to, and protect the legal rights of, recently freed slaves.
To see this part of our Constitution - the part used to dismantle racial segregation in Brown v. Board of Education, dismantle restrictions on interracial marriage in Loving v. Virginia, and dismantle sex discrimination in Reed v. Reed - be used to protect the profit margin of a corporation with a long track record of mendacity and double-dealing with the people of Vermont is galling, to say the least.
However, given the pro-corporate tilt of the federal courts, Entergy and any other corporation whose officers, leadership, and shareholders believe that taxation and regulation are infringements on the company's God-given right to make gobs of money can invoke the equal protection clause in this manner.
As U.S. Supreme Court Justice John Paul Stevens wrote in his dissent in the Citizens United v. FEC case in 2010, “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their 'personhood' often serves as a useful legal fiction. But they are not themselves members of 'We the People' by whom and for whom our Constitution was established.”
Stevens's words should be the overriding legal principle for our nation - that corporations are not people, and they do not possess the legal rights of people. Period.