Academic journal article Journal of Legal, Ethical and Regulatory Issues

Corporate Speech and the Problem of Corporate Personality in Citizens United V. Federal Election Commission

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Corporate Speech and the Problem of Corporate Personality in Citizens United V. Federal Election Commission

Article excerpt

INTRODUCTION

As the Citizens United v. Federal Election Commission (2010) decision reverberates throughout the American political system, controversy over the role of corporate political campaign contributions has intensified accordingly. In its majority opinion, the Supreme Court held that corporate political speech in the form of direct contributions to political campaigns is entitled to First Amendment protection.

This decision raises a number of fundamental questions about the nature of corporations. When a corporation makes a political campaign contribution from its general treasury who, exactly, is "speaking?" Is it the shareholders, directors, officers or other employees? What about the political interests of other stakeholders, such as creditors, suppliers, customers and members of the affected communities? Whose political interests warrant the financial support of the corporation that will reduce the firm's profits dollar-for-dollar? When the political interests of these corporate stakeholders conflict, which ones can legitimately claim superiority?

As a practical matter, the corporate directors will most likely decide because in the structure and governance of for-profit corporations, they have the responsibility to mediate among the conflicting interests of the various corporate constituencies. The fundamental question remains, however, whether any corporate speech on a political issue can fairly represent the widely divergent interests of all who comprise the corporation.

Thus, this paper argues that the origin, nature and structure of a for-profit corporation make it inherently incapable of the kind of speech that the Court sought to protect.

Part II considers the Citizens United opinion and the Court's focus upon the importance of First Amendment protection for political speech, regardless of it source. Part III discusses legal theories of the corporation and how the concept of corporate personhood, whether considered implicitly or explicitly, has influenced issues concerning the recognition of legal rights for corporations. Part IV presents an argument that while it is sometimes necessary to grant corporations the same legal status or protections as those given to natural persons, the right to First Amendment protection for political campaign expenditures is not such a situation.

It is important to note at the outset that this article does not address concerns that direct corporate political campaign contributions would distort or otherwise unfairly tilt election contests in favor of corporate interests; rather, it contends that for-profit corporations are incapable of the kind of speech about which the Court expressed such concern in Citizens United.

THE EXPANSION OF CORPORATE FIRST AMENDMENT FREE SPEECH RIGHTS IN CITIZENS UNITED V. FEDERAL ELECTION COMMISSION

In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court extended the First Amendment free speech rights of for-profit corporations with respect to the use of general treasury funds for political advocacy and electioneering communications.

Citizens United, a non-profit corporation that accepted money from for-profit businesses, planned to run advertisements promoting its documentary film Hillary: The Movie, about Hillary Clinton, then a candidate in the 2008 Democratic presidential primary. Citizens United wanted to make its film available within 30 days of the 2008 primary elections, but feared that doing so would violate federal campaign contribution laws because the group had accepted funds directly from for-profit corporations to make the movie. Had the for-profit corporation funds come through a Political Action Committee, a separate organization established by the for-profit corporation to collect and distribute money raised by voluntary contributions from the corporate shareholders and employees, no legal issue would have arisen. Bipartisan Campaign Reform Act (2002). …

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