Free Speech and the Corporate Person

Why, why, why do corporations have the legal status of people?

Yes, it makes sense on one level.  Corporations obviously need to do some things, like own property, that are rights normally given to people, and the precedent goes all the way back to 1830.  But to solve this problem by giving them the full status of people, with all the rights that go with that, and to make that a precedent for extending them even more rights, seems like a clumsy and dangerous solution.  Corporations are not human beings, and the reasoning behind human rights makes no sense when applied to an entity that isn’t a person or any sort of creature at all.

We have human rights because people have thoughts, emotions, and physical bodies, and we believe these things have a degree of sanctity and should be protected from harm.  It is based on our idea that human beings are special that the Bill of Rights defines things that every person should be safe from (cruel and unusual punishment, being held without charge, unlawful searches, etc) and things that every person should be able to do (bear arms, freely practice religion, and the currently relevant point, speak freely).  Because these rights are a natural result of being human, we don’t feel the need to extend them to non-human things like animals (protection from cruel and unusual punishment, yes; right to bear arms, no), plants, or machines, and we generally think it’s pretty silly when people suggest it.  (Warning: that link is a PDF.)

So why do corporations get these rights?  After all, they’re not human either.

I am, of course, referring to Citizens United v. Federal Election Commission, the profoundly disturbing Supreme Court decision that overturned election laws limiting corporate spending.  More articulate people with better (read: any) legal backgrounds have already explained why this is a badbad, bad thing (more nuanced opinions can be found here and here), but it’s hard to argue with the logic of the court majority.  Free speech is a human right.  And corporations have the status of humans.

The nonsense of giving corporations such rights becomes apparent.  If corporations have the right to campaign for a candidate, should they have the right to vote?  Or why not run for office?  Should they be protected from cruel and unusual punishment and should they be allowed to get out of jail on bail?  The last two questions are silly, of course, because in the context of a company, they’re meaningless.  And that’s what applying human rights to corporations is: meaningless.

Justice Thomas, speaking for the majority, says that the ruling makes sense because free speech would extend to a group of people who get together to promote a candidate.  Why extend it to groups of people in general but not to corporations?

The answer, of course, is that if a group of people get together to form a grassroots campaign, as they did for Obama, the group is created for the sole (or at least main) purpose of campaigning, and the individual members’ views are being directly presented by the group.  In other words, opinion-wise, the sum is equal to the parts.  On the other hand, a corporation is created for a different reason: to make profits.  There is guaranteed to be enough heterogeneity in a corporation that any campaigning it does will be going against the wishes of some people in the company, most likely the lower-level workers, and a good chance that it won’t even fairly represent all the shareholders.  In fact, the main issues that the corporation will be promoting wouldn’t necessarily be relevant to anyone within it if the corporation itself didn’t exist.  A company is not merely a venue for channeling money towards issues: it actually creates and changes the issues being promoted.  The corporation is not at all equal to the sum of its parts.

Say, for instance, you’re a Green and you want to promote the environment, so you get together with your Green buddies in order to do so better and you form a little pro-Green campaigning group.  You will be promoting Green issues together just as you would have separately.  Now say that, instead of a pro-Green group, you decide to open a falafel restaurant.  If you now decide to spend the restaurant’s profits campaigning, you aren’t going to be promoting Green issues; you’re going to be promoting falafel issues.  These issues may run counter to the desires of individuals in your group.  For instance, as the manager, you might realize that the restaurant needs to spend a lot of money on safety equipment to get the kitchen up to code, so you might campaign to loosen restaurant safety regulations.  That’s in the restaurant’s interest, but not in the interests of the guy working the deep fryer who’s actually in danger of getting hot grease burns.  Moreover, all your campaigning is centered on an issue (falafel) that neither you nor any of your employees would have been interested in promoting if you’d gotten together directly for the purpose of campaigning instead of founding a restaurant.

There’s another side to free speech, too: the side where one person’s voice should not be allowed to completely overwhelm everyone else’s.  If some people were trying to have a discussion and one guy had a megaphone and was using it to bellow out over everyone else, you wouldn’t be infringing on that guy’s free speech to take away his megaphone.  You’d be promoting the free speech of everyone else who didn’t happen to have a megaphone and, thus, had no chance of being heard.  Individual expenditures on campaigns are fine in part because no individual, even a very rich one, is going to spend that much money on a campaign.

A person might spend as much as a million dollars, perhaps, but that’s still a fraction of the $714 million spent on Obama’s record-breaking campaign in 2008  ($246 million of that was in donations of under $200 each).  If one human being, or a small group, spent more money on a campaign than everyone else put together, we would have reason to put some very strict limits on individual campaign spending, but no one has.  On the other hand, ExxonMobil had revenues of $477 billion in 2007*.  Just that one company could spend as much on a campaign as all the private citizens in the United States spent put together.  Basically, if corporations can spend as much as they want on elections, you might as well put your political activism to rest.  Your opinion–and your $200 contribution–will be irrelevant.

The other reason people in favor of the ruling present is that free speech is a two-way street: there has to be a speaker and a listener.  Companies can tell you anything they want, but you don’t have to listen.  It isn’t like they can force you to vote one way.  Yes, but the huge influx of money means that they can flood the airwaves with one opinion and drown out any opposition.  They’re not infringing on your freedom to vote any way you like, but they are infringing on your freedom to make a fully informed vote.

This ruling was particularly disturbing because it regards election law.  Bad rulings happen, bad laws get passed, and sometimes you just need to chill out.  We have checks and balances.  Sooner or later another law or Supreme Court decision will set things right again.  But in the case of electoral law, the decision itself influences the chances that anyone who opposes it will be elected.  Alarmist?  Maybe.  But this is a serious problem.

(A final reason given in support of the decision by some people is that corporations find ways to donate to campaigns already.  They do it anyway, so what’s the point of the law?  I’d love to see that logic applied to drug use and drunk driving.)


*Yes, that’s before the crash, but so was virtually all of Obama’s campaign.



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2 responses to “Free Speech and the Corporate Person

  1. Pingback: Regulation Can Increase Freedom « Chimaera

  2. Pingback: Today Is Alan Grayson’s Money Bomb Day « Chimaera

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