The Supreme Court decision

[gwillen]

For those on my flist, if any, who support the Court's decision in /Citizens United v. FEC/, I would be interested to know your answers to the following questions:

Is a toaster a person?

Is a corporation a person?

Can you explain the difference?

What would it mean for a toaster to have a right to free speech?

What does it mean, precisely, for a corporation to have a right to free speech? This is not the same as the free speech rights enjoyed by any of the people involved as individuals -- this, as ruled by the court, is a separate right, belonging to the corporation as an entity in and of itself, completely independent of the rights of any of the individuals involved.

Can you explain the difference?

ETA: Justice Rehnquist's dissent in /First National Bank of Boston v. Bellotti/
makes for excellent reading on the subject.

Comments

[beinsane.livejournal.com]

You have a point, but at the same time:

The New York Times Company can endorse candidates on its website.

The International Business Machines Corporation cannot.

Legally, both are business corporations established under the laws of the State of New York, publicly traded and subject to SEC regulation, etc. So why would silencing one of them violate freedom of the press, and the other would not?

(The wrong answer is "Because NYT is a media company." If IBM bought a weekly community paper in Armonk they'd be a media company too. Hell, employee newsletters probably count as "press".)

There is a fundamental contradiction between strong free speech rights and eliminating the problem of bribery via campaign contributions. And in my experience, the left doesn't recognize that there's a contradiction and the right doesn't recognize that there's a problem.

[gwillen.livejournal.com]

I mean, I can go a few ways on this. Following Rehnquist's dissent as linked above, which addresses this issue directly, I could say that the New York Times Company was chartered for the purpose of speech, including political speech; and that by permitting it to be so chartered, the state of New York implicitly granted it the freedom to engage in such speech. The International Business Machines Corporation, by contrast, was chartered for the purpose of making machines and selling them. (It is, in Rehnquist's parlance, a "business corporation".) There is nothing inherent in its charter that necessitates granting it the privilege of political speech, so Rehnquist would see no contradiction in silencing it on that topic.

So in fact, Rehnquist seems to think your "wrong answer" is the right one.

Of course, Rehnquist was writing in the era before conglomerates, when corporations were generally chartered for a purpose, rather than the modernly-popular "for any lawful purpose for which a corporation can be chartered in the state of Delaware." I personally would like to see us return to that era, and I think it's actually a closely-related issue to the current one, but that's straying a bit off the topic.

My actual answer to you, I think -- and it's conceivable I may seek to revise this later, but I've thought it through enough to at least have the beginning of a specific opinion -- is that we need to distinguish between _permitting_ corporations to engage in speech, and declaring that they have a _right_, Constitutional or (heaven forfend) natural, to freedom of speech. I think it's entirely reasonable to permit the New York Times to engage in freedom of political speech (given that it is chartered for that purpose among others), while at the same time not permitting IBM to do likewise. But I think this is actually NOT the issue at hand. The issue, for me, is that I do not think EITHER IBM or NYT should be held to have a Constitutional _right_ to free speech. I think that if either of them is to be allowed to engage in political speech, that is a privilege which the statute giveth, and the statute (state or federal) had damned well better be able to take away.

[beinsane.livejournal.com]

I agree with you that the death of corporate purpose statements is to be lamented. And there's certainly precedent for only allowing corporations organized for a particular activity to engage in that activity - even in Delaware, banking and insurance activities are off-limits to any corporation not listing them in its charter. But it still gives me pause to do the same thing with political speech: if you're licensing corporations to speak, and it's effectively impossible to get the money for an effective campaign without a corporate form, you're pretty much licensing people to speak. And that's a no-no.

(I'll note that the corporation in question here, Citizens United, is a Virginia nonprofit corporation organized primarily for [insane Christian right] political purposes, and they were fighting the requirement to be licensed with the FEC in order to screen their movie about Hillary Clinton. If CU were an unincorporated association of private citizens, this would be a clear violation of individual freedom of speech and assembly, case closed. The fact that they chose to file the corporate paperwork shouldn't change anything in my view.)

[gwillen.livejournal.com]

if you're licensing corporations to speak, and it's effectively impossible to get the money for an effective campaign without a corporate form

I think your solution is the source of your problem. That is, the only reason you can't get money for a campaign without a corporate form is that you will be drowned out by corporate forms. I see an obvious solution here.

As to your comments about CU, I think you are committing a fundamental error. If CU were an unincorporated association of private citizens, they would be using their individual funds, acquired and owned as private citizens, to screen the movie. You are absolutely correct that preventing them from doing that would be a clear violation of their individual rights. But they did not merely "file the corporate paperwork". Had they done that, they would _still be free_ to use their individual privately-owned funds to show a movie, and nobody would be able to stop them.

But clearly they were using corporate funds, which means they were taking advantage of the legal benefits granted to corporations over people. (I couldn't say which ones; maybe they were nonprofit and thus not taxed, for example.) So let's be clear: When we talk about preventing CU from showing a political movie, we are in no way preventing the people involved from doing so. All we are doing is preventing them from using the extra advantages given to them as a corporation under state law to do it. That's a critical distinction to remember, when people start throwing around things like "but corporations are made of people!" The privileges we're talking about here are EXTRA rights, handed out _above and beyond_ those already held by the people involved, by virtue of the fact that the state has chosen to charter a corporation -- a choice it is absolutely free to reverse, and therefore must also be free to regulate.

[beinsane.livejournal.com]

I guess my overall point is that if you regulate donations to candidates' campaigns, then the money will flow to third-party groups. And if you ban those third-party groups from campaigning or make them get licenses to campaign, you're also going to stifle legitimate political speech, and that's unconstitutional. The rest is just details.

Also, corporate law in the United States is massively fucked up, and since it's the hands of our 50 corrupt state governments, it's impossible to reform. (Someday I'll start my blog back up to rant about how broken our political and legal systems are.)

As a side note: non-profit unincorporated associations can qualify for the various 501(c) tax exemptions just as if they were incorporated. The benefit of incorporation is that an association has no legal existence and can't enter into contracts to, say, lease office space on its own. This makes it necessary to incorporate once your organization reach a certain size.

[platypuslord.livejournal.com]

All we are doing is preventing them from using the extra advantages given to them as a corporation under state law to do it.

This is a very interesting point. I am not sure I understand it fully. If the situation is as you describe, why did CU incorporate? It's not like they're selling any actual product. They have no revenue.

...Come to think of it, where did they get the money to make this movie? Corporations don't just spontaneously develop "corporate funds". Who donated to them? (Was it individuals, or corporations?)

Is it really true that CU could have been an "association" and made the movie legally (at the cost of paying some extra tax on donations received)?

If so, it seems like we should be seeing a lot of corporate-inspired political advertising already. I mean, sure, there's a 1.5x or 2x multiplier on the cost of such advertising, but what is that to an entity with revenue in the billions?