Home > Academic Articles, Corporate Personhood Series > Reply to Citizens United Articles

Reply to Citizens United Articles

Summary:

  • Corporations are collections of individuals with a common goal; not an abstract legal fiction.
  • It is clear that corporations have some Constitutional protections, but not others.
  • The First Amendment is one of those Constitutional protections, including the right to free speech.
  • Any Congressional reform should focus on transparency, rather trying to cap spending.

This article is by Scott Blake, a 2L at Chicago-Kent.

The public, as well as politicians, have been condemning American corporations in the wake of the recession. If you were to ask anyone on the street what they thought of American corporations, they would probably reply that corporations are greedy, self-interested, and have too much money and influence in politics. I think that this current outlook on corporations is what is framing the current debate on Citizens United. The typical divide goes like this: liberal minds view corporations as greedy and self-interested, and think that the government should step in to limit their power and influence. Conversely, conservative minds distrust an overpowering government and want to limit any government restriction of individual rights.

So what is a corporation? The first thing that comes to mind is AIG, Exxon, AT&T, Bank of America, or any other large, high profile, for-profit company. However, a lot of other groups are corporations as well: the New York Times, labor unions, the NRA, the NAACP, the Sierra Club, the Archdiocese of Chicago, and Greenpeace. Although their motivations differ (profit, environment, social causes, etc), these corporations all deserve the same protections. This means that it would be unconstitutional to give the NAACP certain constitutional protections, but not Exxon. At its base, a corporation is a group of individuals who collectively join to promote a common interest. People form groups because they are stronger in numbers. An advocate of gun rights is not very influential alone; however, if he joins with other individuals and forms the NRA, their collective voice becomes more powerful. Just as the gun right advocate has a right to free speech, so should the corporation he and other like minded people have formed to express their views.

A common critique of corporate personhood goes as follows: “No corporation has ever voted, dreamed of a better life, or died for a cause.” (see Tom Carroll’s previous article). It is true that a corporation is not a person metaphysically. It seems that the crux of Tom’s argument is that corporations are intangible legal entities created by states law. It is true that corporations are legal entities, but at their core, corporations are groups of individuals with a common goal in mind. It is important to protect corporations, just as individuals. If constitutional protections are stripped from individuals when they form corporations, people may be dissuaded from forming corporations in the first place.

It is well settled that corporations are protected by some parts of the Constitution. This is because by restricting the rights of corporations, the government is restricting the rights of individuals- either the owners or shareholders, or any citizen who wants to hear what the corporation has to say. For example, corporations are protected by the 14th Amendment and the right to Due Process, as well as the 4th Amendment. In contrast, the 5th Amendment does not apply to corporations; a corporation cannot go on the stand and plead the 5th. The same is true of voting rights; a corporation cannot vote. So, should the 1st Amendment apply to corporations? In some contexts, it is undisputed that the 1st Amendment applies to corporations. For example see NCAAP v. Alabama and NCAPP v Button, both civil rights movement cases. And in viewing a corporation as a collection of individuals, the right to free speech should be afforded to corporations as well.

Almost everyone agrees that monied interests in politics are a problem; everyone says that something is wrong with money in our political system. What the Court struck down in Citizens United was only a small part of the larger campaign finance reform issue. Money will always be part of politics. If Congress enacts campaign finance laws, it is only a matter of time until lawyers find a loop hole or some other creative way to support their candidates or positions (or hurt the other side).

I’m not arguing that there should be absolutely no restriction on campaign spending; however generally, the more speech the better. It allows thoughts and ideas to get out to the public so they can make up their mind when they vote. Instead of worrying about the amount of money, Congress should worry about informing voters about where that money is coming from. In recent elections, more organizations have sprouted up with illusive and vague names, and it’s impossible to know who is actually paying for the message. If people know where the money is coming from, they can better interpret and understand the message they are hearing. And if a “bad” corporation throws millions of dollars at one candidate, and this information is available to the public, there would likely create a blowback against the candidate supported by the corporation.

People who disagree with the Citizens United decision think that corporate America is going to steamroll every future election. I think that this conclusion is premature. Looking at the 26 states that have no restrictions on corporate spending in state elections, the results are inconclusive. However, I do recognize that the stakes are higher in federal elections, especially for President. Time is the only way to determine the effect of the Citizens ruling on federal elections. Conservatives and liberals disagree on their prediction, but there is one thing that I can be certain of: money will always be a part of politics.

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