Corporations’ Free Speech


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The Supreme Court recently ruled, in a 5-4 decision, that corporations have the same 1st Amendment rights as individual people. As such, corporations are now legally permitted unlimited spending  on political advertisements.
This overturns a restriction set in place in 1907 when Theodore Roosevelt got congress to bar corporations, railroads and banks from using their money in federal election campaigns. This restriction was later extended to labor unions.
Corporations do, however, still chafe under two restrictions. First, they cannot directly fund candidates in federal elections. Second, they are required to identify themselves in the political advertisements they buy.
Since corporations are considered to be legal persons, this ruling does take that status to a logical conclusion. After all, if a corporation is a person and people have 1st Amendment rights, then a corporation has such rights.
However, such rights are not always guaranteed. After all, the same sort of conservatives who have supported this ruling have also argued that not all people deserve the same rights as Americans. To be specific, it has been argued that folks who are considered terrorists should not have the usual legal rights. Likewise, corporations could also be taken as not having such legal rights, even though they are taken to be persons.
This line of thought does raise an interesting point. If the logic of the ruling is taken as “If X is a person then X gets all the legal rights of a person”, then this would certainly seem to have to apply across the board. As such, terrorists should get the same legal rights as everyone else.
Obviously, it will be argued that terrorists must have their rights restricted for national security reasons and to protect America from harm. This same sort of argument can be applied to the corporations. After all, we surely do not want foreign corporations manipulating our elections nor do we want to face the potential harms that unlimited corporate spending could inflict on our democracy.
This, of course, leads nicely to a consequentialist  argument against this ruling. A central concern of the folks who oppose this ruling is that such unlimited corporate spending will do serious damage to the political process .
First, the much greater wealth of corporations will allow them to vastly outspend real people and thus grant them undue influence in the election process. Naturally, this is not just a concern about corporations but also a concern about wealthy individuals.  This does, however, assume that elections are influenced by spending. This does seem to be the case, but can be debated.
Second, this opens up new doors of corporate influence. While companies cannot directly give to candidates, they can indirectly support them by buying advertising. This provides the politicians with even more temptation to become servants of the corporate masters (not that they are not already at the corporate feeding pail). While sometimes what is good for GM is good for America, this is not always the case. Of course, the government is already strongly influenced by corporate lobbyists and it might be argued that this ruling simply removes a delusion of democracy, namely that corporations do not have vast influence over politics already.
One final point I wish to address is the matter of corporations being persons. Since they are merely a legal fiction, they are not real people. Also, it is easy enough to bring up various intuitively plausible philosophical definitions of  “person” and show how corporations do not meet these conditions. They are, of course, legally persons. But, of course, the supreme court could rule that my left testicle is a person.
Rather than contend with the notion that corporations are persons, I will grant that.  I will even grant that this entitles corporations to 1st Amendment rights. However, this status would also entail that corporations must also be treated as individuals in all other ways.
First, they must be subject to the same tax laws as individuals. For example, the whole corporation just gets  a standard deduction and must itemize for other deductions. There must be no special corporate exemptions, tax breaks or any such things that all individuals do not receive.
Second, corporations must be eligible for jury duty. Since the entire entity is the corporation, if it is called for duty then the entire person must go. After all, when I am called for duty, I have to go in my entirety.  The same must apply to corporations.
Third,  when corporations break the law, then the entire corporation must be punished. If jail time is part of the sentence, then the entire corporation must serve the time. After all, if I were sentence to jail, then I must go in my entirety.
Fourth, corporations must register for selective service and be subject to the draft in times of war. They must be treated like any other draftee (being required to go through basic training, for example).
And so on, for all other laws that apply to individuals. Oh, lest I forget-those that are American citizens do get to vote (one person, one vote), but they must meet the proper residency age, and other requirements.
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  1. I don’t think that all corporations would need to face the draft. Look at Haliburton, for example: not only did it go to Iraq voluntarily, but it also pleaded with Dubya to give it the opportunity…

  2. On one hand I agree with this notion, and on the other it seems a bit too far.

    The fact that corporations, being considered people, should have access to the 1’st amendment makes sense. However, the fact that they have billions of dollars at their disposal in which to fund or “buy out” a candidate doesn’t sit too well with me. If a corporation is a person, they should have the influence of a (one) person, not the influence of an entire army.

  3. This case is philosophically interesting for two reasons: legal caprice and the concept of person.

    A corporation is not a person; it is a group of persons. As such, it has similar footing to labor unions, churches, schools, and similar. Reason suggests that a group should not be granted rights for which individuals of the group do not have. Or in other words, a group may derive rights from members of the group. In effect, a group may be a means for an individual to express his or her own rights.

    If corporations have stand-alone rights, individual who are not citizens may be able to derive rights of citizen via ownership of a corporation. That seems an odd result.

    I said ‘caprice’. I sometimes wonder: why does the law make sharp turns left, right or backwards? An obvious benefit of such a weighty groaning is that the legal profession has enjoyed or will enjoy significant fees because of the change.

    Who is a person? There are two types of tests. Who has a right to the exercise of certain freedoms as a citizen or a foreigner? And who has a right to the protection of the law? Do POWs, by the way, fall outside the law?

    As a footnote, I’d point out that POWs cannot afford legal fees. That probably explains why their cases never get to court.

  4. Enyzme,

    True. Haliburton did step up and go to Iraq, nobly accepting lucrative contracts.

  5. Travis,

    That is a reasonable concern. One reply to it is, however, the stock one that individuals differ in wealth. So, for example, Trump or Bill Gates could drop a fortune on candidates. This, of course, can then be used to argue for limits on donations across the board so as to maintain a degree of equality in politics.

  6. Terrorists have the same rights? Perhaps we should have tried the entire German Army after WW ll. How could they, who fought under a national flag, have less rights.

    It does seem that the current Administration disagrees with Mike.
    Some terrorists will receive trials, some will receive military tribunals, and some will stay put, to dangerous for either.

  7. absurd…
    that is no court…
    not for my rights…
    look the idea without even reading the article…
    is that constitutional law plateaus at adjective rights… meaning that it is backroom conspiracy nuts who try and hijack justice from the idea of just… look if a group of people count as one, and all of those people count as one and all of them need to vote, we’ll call it Capitolist Sufferage, and they will wish to cast the deciding vote if they can purchase it at a standard cost…

  8. I have found two books by Thom Hartmann to be very useful in helping me to understand the origins of this absurd situation.

    Unequal Protection: The Rise of Corporate Dominance

    We The People: A Call To Take Back America.

  9. How do we tell which corporations are male and which are female? Because obviously we need to prevent same sex mergers.

  10. I’m not quite sure I follow the logic here.
    1st: “If X is a person then X gets all the legal rights of a person.” This is a disingenuous framing of the argument. It would be more accurate to say that “If X is a U.S. citizen (or corporation who claims its home as the U.S.) then X gets all the legal right of a U.S. citizen.”
    2nd: To anticipate the argument; it is not the case that foreign companies will run rampant funding political ads (the McCain-Feingold restrictions on foreign companies were not addressed in the United Citizens case).
    3rd: You fail to redress some classical liberal arguments. Some of them go somewhat like this:

    -Humankind has free will. No amount of money for advertising can change the will of a person lest he/she finds the advertisments compelling. To suggest anything less is to suggest an abdication of personal responsibility.
    -The transparency of having companies disclose that they paid for an ad is a very powerful thing. If Wal-Mart started running ads that went against what I thought of, I could very well not shop there anymore.
    – Companies have always sought to influence politicians (since politicians are the ultimate masters of a company’s fate). At least now, there is a clear, easy way for people to see who supports what. Political Action Commisions (PACs) are by no way transparent.

    Your article, in the end, seems to parrot other common news articles without delving into the argument made in the decision. The legal personhood of companies is only one part of Justice Robert’s majority opinion.

  11. Please get as many as possible to publicly make this pledge:
    “I will not vote for any candidate or cause accepting more than $X (you choose the amount) in support from any one source.”
    The U.S. Supreme Court in Citizens United v. FEC recently held that no corporation, union, or other entity can be limited in its political spending. Many saw this coming. And it’s sensible and practical. Simply put, trying to limit political spending is nearly impossible. Imagine that Company Z spends millions trying to defeat Joe. Should that amount be attributed to Joe’s opponent? What if Joe has two or more opponents?
    Yet the implications are troubling. Has this effectively made bribery a constitutional right? Admittedly, money is already deep into our politics. Lobbyists spend billions. But has this decision reduced us to the outright buying and selling of offices?
    But imagine if millions of voters made the “Vote Not For Sale” pledge. Then corporations and unions would realize that contributions and advertising are just a waste of money.
    Of course, few things are as simple as they look. What if Union B spends millions in support of Jane, and both the union and Jane deny any cooperation or collusion? Do you believe them? Can you still vote for Jane? What if Company Z deviously spends millions to support Joe’s opponents precisely to poison them and chase the voters into Joe’s camp? Can you still vote for Joe?
    In cases like this, you’ll just have to slap on your wise voter cap and make the right choice.
    Stemming foreign money is another good reason to make this pledge. There’s no reason the Supreme Court’s rationale would not allow foreign money to buy an election. After all, what is a “foreign” corporation? Where it’s licensed? Where it does business? The nationality of its investors? Don’t most large public corporations have investors from all over the world? The more who make this pledge, the more big donors see the money as wasted!
    -Kevin Hicks, Stockton, CA

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