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

Corporate Freedom of Speech

On his personal blog, MOJ friend, Stephen Bainbridge, has provided a useful round-up of the blogging on last week’s controversial Supreme Court decision on corporate free speech in Citizen’s First v. FEC. I greatly admire Professor Bainbridge's work and carefully consider his analysis of issues like this. 

The responses to the decision have predictably ranged from abject horror to churlish celebration. Bainbridge’s own take on this case is to criticize Justice Stevens for suggesting that the state has “effectively delegated responsibility for ensuring society’s economic welfare” to the corporation. Bainbridge argues that the corporation is nothing more than a nexus of contracts, as Ronald Coase theorized many years ago. The corporate form is a standard structure by which the state facilitates a private ordering. Therefore, Brainbridge views limitations on corporate speech as improper governmental interferences with the private ordering of persons who deserve Constitutional protection.

While Professor Bainbridge, who is clearly a better economist that me, would disagree, I believe that  Catholic social thought, particularly John Paul II's, offers some cautionary insights into this important issue. It seems likely that he would have challenged the formal conceptions of rationality that support economic theory for being far too reductive and limiting. The danger, as he often warned, is that poor assumptions about the person develop into political regimes that destroy human freedom and dignity. He often observed that Fascism and Communism were born of false understandings of the human person. 

If he were alive today, John Paul II might agree with behavioral economists in concluding that human beings, in the full range of their personhood, often do not actualize the formal conception of economic rationality. But, he would have a substantially different assessment of the significance of that conclusion than would the behaviorists. For them, economic rationality is a good that is in short supply. John Paul II, on the other hand, would most likely have viewed economic rationality as a mistake that can be blinding to the true sources of the good and the genuine structure of human freedom.

This suggests that Catholics might be concerned about the range of goods that corporations might pursue in their political speech. They are likely to be material, consumerist, and sensuous goods, ones fit for economic growth, but not fit  for living authentic, effective human lives. If Coase’s theory of the firm is correct, the corporation will advance the goods of overlapping self-interest rather than the agreement to share in the love of God. The social organization that results from the corporate nexus of contract is indeed organized, but toward the ends of self-satisfaction rather than the glory of the Lord. Corporate political speech, it seems to me, can do nothing other than bring the corporation’s over-riding telos—maximization of self-interested self-satisfaction—to the state, eventually crowding out traditional conceptions of the true goods of democratic politics articulated long ago by thoughtful citizens who, like Pericles, sought authentic human fulfillment in their public lives. 


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