Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, January 25, 2010

Citizens United and corporations' speech-goals

Just two quick thoughts in response to Kevin's and Rob's recent posts on the Citizens United case -- which, in my view, is welcome, and perhaps even cause for (non-churlish!) celebration.

First, Kevin's post is very thoughtful, and I endorse nearly all of it, but I'd hesitate before adopting the view that the goods that corporations will promote through their political speech are any more likely to be "material, consumerist, and sensuous goods, ones fit for economic growth, but not fit  for living authentic, effective human lives."  It would be possible to overstate natural persons' tendency to engage in political speech for other-regarding ends, and it would be possible to understand the extent to which corporations can, and do, promote public, or general interests through their political speech.  Also, it is crucial to recall that the laws at issue in Citzens United did not apply only to for-profit corporations, but also to groups that, we might think, exist in order to promote the common good (as they understand it).  Much of the criticism of the decision has overlooked (or ignored) this fact.

Second, we have heard, in much of the criticism of the decisions, the mantra that "corporations are not people and only people have First Amendment rights."  I am inclined to think that Catholic legal theorists should reject the latter half of this claim.  Thoughts? 

As an experiment . . . comments are open.


Garnett, Rick | Permalink

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Like Rob, I don't have a strong opinion on Citizens First v. FEC. I write seeking clarification. Are critics of the decision concerned that corporations are likely more materialist and consumerist than the average natural person or that corporations typically have a competitive advantage over natural persons because of greater wealth? In other words, is the criticism a criticism on egalitarian groungs?

Posted by: Michael | Jan 25, 2010 11:47:06 AM

I am inclined to think that groups of people ought to have First Amendment rights, as well as individuals. I am thinking here not only of corporations in the Wal-Mart sense, but corporations in the diocesan church sense, community organizations, advocacy organizations - anything operating as a corporation. Thinking along the lines of subsidiary groups, limiting the speech of those groups eventually moves us along the lines of a two-tier system - the government and the individual - surely not a Catholic result.

Posted by: Jonathan | Jan 25, 2010 11:50:36 AM

Rick: Most corporations are organized for profit, understood widely as maximizing the financial return on shareholders' investment. That is, for most corporations, the only overlapping consensus. Individuals participating in politics are not subject to the overlapping consensus problem (or at least not nearly to the same degree). I would like us to broaden our understanding of what corporations can and should commit themselves to, but I have a hard time believing that, under our current practices, corporations and individuals are indistinguishable in terms of the self-interest reflected in their political participation. Maybe that's not what you're saying -- I just want to be clear that corporations pose a greater danger than individuals do in terms of using politics exclusively for self-interest. On your second point, yes, Catholics should be in full agreement.

Posted by: rob vischer | Jan 25, 2010 12:59:09 PM

"I just want to be clear that corporations pose a greater danger than individuals do in terms of using politics exclusively for self-interest."

I believe that the great majority of corporations consist of less than 20 shareholders, especially when one includes in that name the limited-liability corporation, the professional corporation, and the like. I am the sole shareholder of my professional corporation, but I fail to see how my corporation poses any greater danger than me in using politics exclusively for self-interest.

In terms of wealth, it seems to me that a corporation is no more dangerous in terms of this calculus than any very wealthy individual making large donations to a campaign, or purchasing an advertisement to promote his / her self interest.

However, this opinion, it seems to me, levels the playing field somewhat for smaller corporations and groups. The Court noted that PACs ccould still speak, and only the wealthiest corporations could afford to make and run a PAC. In addition, if an organization was not sure whether it fell within the stricture of the law, it would have to incur such a massive expense in legal counsel to interpret the huge numbers of regulations that this could be considered censorship in only allowing the wealthiest to speak. Finally, it is difficult to see why media corporations would be exempt from the law - as noted on a Volokh post, though the freedom of the press is guaranteed, there is no freedom for press corporations.

Posted by: Jonathan | Jan 25, 2010 1:19:16 PM

Under the dominant case law, corporate boards must justify their expenditures (including those for political speech) with profit-promoting motives. Other values, to the extent that they are expressed, must be subordinate. As Rob points out in his paper, "Conscience is shaped externally; our moral convictions have sources, and our sense of self comes into relief through interaction with others." When corporate speech pervades politics, there is a real concern that the polity that results will be habituated to the dominant values of the corporation--those consistent with maximization of wealth.

As for speech rights for groups, I think the question is more complicated than it seems. Clearly, we limit the ability of foreign countries to express their speech rights in political campaigns. Yet, what of US companies which are predominantly influenced by foreign owners and foreign markets? Clearly, whatever results from the Supreme Court decision should limit the ability of companies with substantial foreign control, either through equity or otherwise, from engaging in political speech, but how?

Posted by: Kevin Lee | Jan 25, 2010 1:37:37 PM

Good points, Jonathan. My comments are geared more toward publicly traded corps. Corporations with only a few shareholders have an easier time avoiding the lowest-common-denominator approach. And while sole shareholder situations like yours don't pose an added danger compared to individual participation, they also don't bring the same sort of associational benefit as do enterprises with multiple shareholders.

Posted by: rob vischer | Jan 25, 2010 2:47:42 PM

"Clearly, whatever results from the Supreme Court decision should limit the ability of companies with substantial foreign control, either through equity or otherwise, from engaging in political speech, but how?"

If one is a devotee of some foreign cause - let's say Israel or Palestine - should one be able to vote according to that devotion? If so, why would that be different than companies with foreign control engaging in political speech? I am sure there is some way to delineate it, but how?

Posted by: Jonathan | Jan 25, 2010 3:18:50 PM

I think there's a strong connection between a broad view of corporate free-speech rights and a thick view of corporate ethical and legal responsibilities. Citizens United fits well, I think, with the view that corporations have the same sorts of non-profit-seeking duties that normal people have (contra, e.g., Friedman), and the view that they are properly subject to the criminal laws, as they have been under federal law since New York Central in 1909. So there is some tension in the views, for instance, of Richard Epstein, who has advocated abolishing corporate criminal liability because a corporation is nothing but a nexus of contracts (see http://online.wsj.com/article/SB116468395737834160.html?mod=opinion_main_commentaries ), but who advocated the result in Citizens United (see http://www.forbes.com/2009/08/31/free-speech-corporations-opinions-columnists-richard-a-epstein.html ).

Posted by: Chris | Jan 25, 2010 3:38:45 PM

In the dissent, and in much commentary on the decision, the idea prevails that "the corporation" is at worst, pure evil, and at best some sort of ill-begotten non-human life form, alien to all that is elevated and true.

Several months ago, in the course of my interminable, profit-driven commute, I listened to Drucker on Management. In many passages, Drucker seems to be proposing the notion that the corporation is much more than a profit-making machine (not that that's a bad thing). In fact, he singles out the profit motive as a bad business strategy. I believe that, among other things, he describes the corporation primarily as a vehicle for serving customers, a community, one of the greatest human inventions. It is certainly an interesting invitation to rethink our received notion of what a corporation is, deserving of serious reflection.

We seem to have an uncritical, reflexive bias against this particular type of human group. Somehow, the corporation is probably evil, probably devious, probably into raping and pillaging the developing world and the environment, probably out to screw its workers out of healthcare, probably run by unscrupulous plutocrats. Likely the biggest corporations are in a secret league against "the people". If the framers had only known the monster that is Walmart, they would have added something to the 1st Amendment.

I don't believe any of this is true, and it certainly isn't more true of corporations than it is of, say, large labor unions.

Posted by: mattmugg | Jan 26, 2010 2:17:08 PM