Corporations are a “legal fiction”, a tool, a metaphor. They are the invention of men who wanted to attract a reluctant group of investors to their businesses. Specifically, investors afraid of the liability involved with owning a company they had no part in operating. They invented the corporation to limit the liability of these investors, and themselves, by agreeing to consider the corporation as separate from it’s owners. This separation is what protects investors from responsibility for the corporations actions, including speech.

There are limits to any tool created for a specific purpose. For example, if you use a pipe wrench to drive nails the results are predictably poor, and probably destructive. Pipe wrenches are only good at what they are designed to do. Likewise, when you use a tool designed to limit liability to influence governance, the results are poor, and destructive. A for profit corporation is not designed to consider all aspects of a political problem. It is designed to consider only two. Profit and loss. Worse still, only IT’S profit and loss are considered.

Who’s vote is stolen if corporations don’t have the right to influence politics? The shareholders? They can still vote, and speak, and donate, just like anyone else, just like before they formed or invested in a corporation. What right have they lost? A corporation is a separate entity from the individuals that formed it, or invested in it. That separation is what limits their liability, and is also how a corporation can be restricted without restricting the rights of the individual.
You can’t have it both ways. Rights come with responsibilities. Corporations limit shareholder responsibility. Therefore, their rights are not transferred to the corporation, or limited when the corporation is.

Investors want their own rights, and because they invested in a corporation, they want rights above the “one man one vote” ration the rest of us get. At the same time, they ask to be relieved of responsibility for that amplified voice. Sorry, but that dog won’t hunt.

Corporations are not groups of people. They are a separate entity. That’s the whole point of incorporating. A corporation is a virtual machine, run by people for a paycheck, and owned by people for profit. I can’t see how these people’s rights are violated if the machine doesn’t get a turn at the podium, as long as they still do.

It seems plain that this is nothing more than anthropomorphizing property to gain advantage politically, legally, and from those, economically. Pinocchio was a fairy tale. you can’t turn wood into a little boy, or a legal fiction into a man created equal. When Jefferson wrote “…endowed by their creator”, you will have a hard time convincing anyone that he meant shareholders.

If you want to get 1,000,000 people together and shout as one voice, go for it. Nobody is stopping you, but don’t ask for protection from liability for that voice. Corporations cant be put in jail for slander, bribery, conspiracy, fraud, or election tampering. People can.

LN: A corporation’s ability to engage in communications is important precisely because a corporation has interests that are not identical to the interests of its shareholders. An advertising company may want to affect some government regulation because that regulation has an impact on its profits. The shareholders of an advertising company have some interest in the profits of the company, but they also have other interests, some of which may conflict with their interests as shareholders in this particular company.

The people who will profit from this theoretical change in regulation can’t even get behind it, yet the corporation continues to try and effect the change.

If ever there was a reason to limit corporate speech, it’s when it causes government to steer away from “for the people” and become “for the legal fiction”. Corporations were conjured up out of thin air and given the metaphorical form of a person to serve the interests of people. Presumably not just it’s stockholders, because it’s charter is granted by the government. When a corporation serves it’s own interests by going against the interests of even those who own it, the name Frankenstein comes to mind.
Perhaps Asimov’s three laws of robotics need to be written into corporate charters?

Pendulum: Aren’t the corporation’s “speakers” (managers, owners, employees) equally free to speak their minds and money as part of an entity that doesn’t receive special tax and limited liability privileges from the state?

No one’s saying that 1000 shareholders of X Corp can’t buy political ads as a voluntary partnership. All we’re saying is, if you wish to enjoy special tax and liability benefits, certain conditions of your doing so must be met. What’s the problem with that? (Not a practical problem — a philosophical one.)

I agree. If you want to exercise your 1st amendment rights, great. It’s a bit disingenuous to want limited liability when you do it.

To answer the original question, are corporations people? The SCOTUS has never officially ruled on it, although case law has been written as if they had.
Santa Clara County v. Southern Pacific Railroad is sometimes cited as when they did, because the court reporter’s comments included a statement the Chief Justice made before oral arguments began, telling the attorneys during pre-trial that “the court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
Later opinions misinterpreted these pre-argument comments as part of the legal decision, even though the Chief Justice wrote that it was the court’s intention to settle the case while avoiding a ruling on that issue.

“Congress passes laws about obscenity … under what authority?”

“Yep, does it all the time. Like I say, you can argue that it shouldn’t have that power, but that train left the station a long time ago and it ain’t comin’ back”.

And the train of corporations running the country has likewise long ago left the station.This ruling is just a dollop of a few country houses. It’d be nice to think it’s not too late to reign corporations in, as they are no longer providing the greatest good to the greatest number of citizens, which they may have once done, but it probably ain’t gonna happen either, which is why Christmas for most of you kids sucked this year and may even just end! Sorry kids.

One of the characteristics which corporations share with rare but extant persons is an inability to stop consuming whatever is in front of them. Some call these people Obese,Monty Python has a sketch of them exploding in restaurants, the rude call them fat pigs and some alien foreigners call them Americans and corporations call them consumers and say they live in China.

The underlying question seems to be whether the continuance and buttressing of corporate control of the country is in the country’s best interests as we enter our eclipse as number 1 and face the renewal of the hegemony of China? (Tomorrow’s issue of The London Review of Books has an interesting essay on this by Perry Anderson called “Sinomania”)

It seems ill mannered to characterize those who think the answer to the previous question is “Yes!” as asses,(e.g. the majority of this Supreme Court) but that is the incorrect answer. And if it’s what you’ve come up with you have not been paying attention to the last half century and you will fail the entire course.

Goliaths are not good at survival when speed and cunning are crucial as the American Revolutionary forces (and the Viet Namese/ Afghani anti-American forces) had (or have) the advantage in home terrain foreign to the larger more cumbersome less savvy invading Armies.

Our founders would have hated TBTF Corporations. Way too King and Pope-
like; thus Federalism. Speaking of which;it wasn’t just some pretty dumb dick in Cosmo that won the recent election in Massachusetts, maybe some folks actually thought they’d lose their better health care system to better health care for dumber states.

What about making Corporations States? Redraw a corporate (i.e. non-”existent” or immortal) map of “The United States Of/In Corporate America” which would also solve crossing state lines to buy health care from Mass.or VT.?

And re the Press/Printing Press/ Media/What’s Media? confusion, it would appear that when the Founders wrote “Press”- albeit printing Press- and despite the first ones having abetted the Papacy in expanding it’s realm- they had in mind freedom of speech accorded to means of disseminating information beyond the “personal” voice. (Speech is usually uttered by a person right? Or a chorus; yes Stevens must’ve meant chorus in his earlier decision. We won’t be inconsistent at 90!)

Unless the first amendment didn’t mean speech using vocal chords and diaphragm but meant speech using vocal chords and two hands or vocal chords and a good strong noose. Which, as the framers were to be our first congress, seems from where we’re looking now, quite possible. (Is tha’t'reason?)

So what happens to expressions like, “Put your money where your mouth is!”? It becomes just, “Put your mouth where it is.” Or maybe “Put our mouth where your mouth was!”

Brindisi!

Andrew Sichel

The major reason that human-based societies can exist succesfully for so long is that generally, at least within a society, most of the humans give ohters right to live, let them be. Not true with the corporations! Corporations are working heavily to destroy other corporations, so called “competitors”, by either driving them to bankrupcy and so a cessation of existance, or simply “eating” them via a buyout. “Business is war” some businessman says. This destructive nature of corporations means a human-like system of them will not work. Giving corporations political powers means that the current incumbent will use it to destroy new, beginners corporations, that potentially threaten incumbents future.

“It’s true, of course, that corporations “are not human beings.” But their owners (the stockholders) and employees are.”

This raises the possibility that the Court could have struck down USC 441b on the grounds that it violated the free speech rights of owners and employees. But the court didn’t do that.

“Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on.”

Why not? The majority in Citizens United seemed to think that some time, place and manner restrictions on speech are appropriate. It could have argued that the particular time, place, and manner restrictions imposed by USC 441b were unconstitutional. Instead, the Court ignored the rights of the human beings organized as corporations, and focused on the rights of the corporations themselves. This focus lead the majority to make a very different argument, namely that USC 441b only restricts the speech of corporations and not individuals, and thus restricts speech based on the identity of the speaker. It struck down the law on the basis that restrictions on speech that are based on the identity of the speaker are generally unconstitutional.

“There are various other arguments for treating political speech by people organized as corporations differently from that by people using other organizational forms. I’m not going to try to address them all here. We can discuss them more productively if we first dispense with the weak but popular claim that corporations aren’t entitled to freedom of speech because they aren’t people.”

Given that Somin specificly quotes Stevens, this strikes me as a strawman. Stevens doesn’t claim that corporations aren’t entitled to freedom of speech. He argues that the fact that corporations aren’t people is a reason for treating speech by corporations differently from speech by people.

Finally, I would point out that Somin’s repeated use of phraseology such as “people organized as corporations” suggests that for him, the rights of corporations are nothing more than the rights of the people who make up the corporation. Or to put it another way, Somin appears to believe that it is not possible to violate the rights of a corporation without also violating the rights of an individual. In that case, Somin’s position is substantively identical to that of the individual who denies that corporations have any rights at all. It seems rather pointless for Somin to bother to argue that corporations have rights if the rights that Somin thinks that corporations are by definition so weak that they never make a difference.

If you let these public airways be monopolized by the highest bidder, other voices may be crowded out. I guess we will see.

Congress passes laws about obscenity and fraud, or state and local jurisdictions do? If so, under what authority?

Yep, does it all the time. Like I say, you can argue that it shouldn’t have that power, but that train left the station a long time ago and it ain’t comin’ back. In the unlikely event that it does, then and only then is it reasonable to argue the literal wording of the 1A as supporting Citizens United.

Congress passes laws about obscenity and fraud, or state and local jurisdictions do? If so, under what authority?

Perhaps the better question is “Has Congress been passing laws to bridge freedom of speech when it is expressly prohibited from doing so in 1A?”

ArthurKirkland: If corporations are to be treated as people, why not treat people as corporations? I’ll take limited liability for life, Alex.

Corporations don’t have limited liability. You can sue a corporation for its actions all you want. Owners (shareholders) of corporations have limited liability for the corporation’s actions. In that respect, treating people as corporations (limiting the liability of their owners) is foreclosed by the 13th Amendment.

Now I’m not a lawyer, but it seems to me that this bit of the Constitution prohibits Congress from making any laws that abridge the freedom of speech or the press. Maybe I’m too literal minded. Still, even with my reading glasses on I can’t see any reference to who or what is doing the talking or operating the printing press. The 1st amendment doesn’t give people rights (or corporations or autonomous collectives.) It PROHIBITS Congress from passing laws that restrict speaking and publishing. McCain-Feingold and all of its scrofulous predecessor laws are unconstitutional.

Yes, you’re too literal minded. Congress passes numerous laws which “abridge” freedom of speech: obscenity laws, for example, or fraud laws. Nobody, not even the most ardent free speech defenders, thinks we should read the 1A that literally. In consequence, there’s no reason to suddenly start doing so in this particular case.

Joe: That is to say, corporations are envisioned as a separate legal entity distinct from their shareholders, directors and managers.

In fact, this was one of the original reasons for incorporation; the entity survives the death or departure of the individuals who originally constituted or composed it, a feature that appeared long before our corporations with “personhood” and shareholder immunity.

Cheers,

Ilya Somin: THe point is that whether it “violates the Constitution” does not depend on whether the people in question are organized as corporations or in some other form.

My point (here and elsewhere) is that nothing in the laws of corporations or federal campaign law prohibits any or all people who are corporation owners from exercising their free speech rights in any way differently from others. As Anatole France said, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges….” ;-)

Cheers,

Simon Jester: I’m sure that after CU, we will all vote for whichever candidate appears on television more often.

Would seem to have been part of the problem for Coakley in Massachussets. And you should include “Cosmopolitan” with “television”.

Cheers,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Now I’m not a lawyer, but it seems to me that this bit of the Constitution prohibits Congress from making any laws that abridge the freedom of speech or the press. Maybe I’m too literal minded. Still, even with my reading glasses on I can’t see any reference to who or what is doing the talking or operating the printing press. The 1st amendment doesn’t give people rights (or corporations or autonomous collectives.) It PROHIBITS Congress from passing laws that restrict speaking and publishing. McCain-Feingold and all of its scrofulous predecessor laws are unconstitutional.

(a) that they are arguing about definitions which, as everyone knows and as has been said before, are neither right nor wrong but merely resolutions to use words in a different way. “What is a corporation?” Or, as has been pointed out before, many questions that appear to be metaphysical are merely a matter of definitions. “If a tree falls in the forest and there is no one around, is there a sound?” Define “sound”.

(b) that they are arguing by analogy, which means they are using value judgements rather than logic or history.

ArthurKirkland: If corporations are to be treated as people, why not treat people as corporations? I’ll take limited liability for life, Alex.

I like that: J. Aldridge, Inc.

Of course corporations existed at the time of the Founders. Massachusetts itself was a corporation, the colony owned by the Massachusetts Bay Company. Corporations existed before the Revolution and they existed after the Revolution.

Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on.

Corporations are not “human beings organized as corporations.”

Unlike the other business enterprises you mention — a sole proprietorship or a traditional (i.e., UPA) partnership — corporations are endowed with “legal personhood.” That is to say, corporations are envisioned as a separate legal entity distinct from their shareholders, directors and managers. And this legal personhood is the basis for recognizing the separate rights of corporations in the first place.

There is really no need to recognize the constitutional “rights” of a traditional partnership or sole proprietorship, because according to state law, there is no such person/entity as a traditional partnership or the sole proprietorship. The only relevant “people” in these enterprises are humans. So the rights of the entity ought to be no less and more than the sum of the rights of its members.

Hence, your argument here appears to be squarely at odds with the very theory that forms the basis for granting a corporation any legal rights at all.

The post specifically focuses on just one argument for restrictions on corporate speech (that corporations are not people). I specifically said that I wasn’t trying to address the full range of arguments for and against corporate speech regulation.

THe point is that whether it “violates the Constitution” does not depend on whether the people in question are organized as corporations or in some other form.

Advertising is a giant waste of money, the basic proof that markets are not efficient, because companies do engage in advertising even though anyone with any sense realizes that it’s a complete waste of money.

I’m sure that after CU, we will all vote for whichever candidate appears on television more often.

Isn’t that how it works?

;->

byomtov: i

But that’s true for any form of expressive association, isn’t it?

I don’t think so. Some expressive associations, like advocacy groups, exist primarily to promote a specific point of view on political questions. It’s true that not all ACLU members, for example, are in political agreement, but they do agree, broadly, on the issues addressed by the ACLU.

I think there’s a tricky problem here of narrow vs. broad. If a technology corporation, for example, lobbies in favor of some sort of tax break for R&D, that’s narrow advocacy plainly related to its business. But suppose it supports a candidate who favors the same tax break. Now it is supporting a whole package of positions, some or many of which may be anathema to its shareholders. What if the candidate is strongly pro-choice, say? No doubt, if we’re talking about a publicly held corporation, many of the shareholders would oppose that candidate, potential tax break notwithstanding.

Should corporate management be able to spend their money supporting such a candidate?

I believe that the restriction on hiring discrimination kicks in when you have 15 employees.

Do corporations have the right to vote?

I very much appreciate your argument about the shareholders being harmed by restrictions on corporate speech — in my view, this is getting at the heart of the matter, because you are at least considering the consequences of regulation (as opposed to Somin, who seems content to focus purely on abstract questions of sacred inviolable rights). And yes, restrictions on corporate speech could very well reduce shareholder profits — presumably corporate speech has the goal of increasing profits. (It should.)

But at least now it seems reasonable to point out that we are not all equal corporate shareholders of the American economy. And that what is good for some people may be bad for other people. I don’t actually have a strong position on the issue; I just found these “inalienable rights” arguments silly and distracting.

James N. Gibson: I truth, and to get back to the present, the issue to me is why are the “for profits” restricted while the “Non-profits” are not even though the “Non-profit” could in fact be funded by a silent for-profit entity or even a foreign entity.

Just because Congress is free to regulate both (if we assume that to be true) doesn’t mean they have to regulate both the same on pain of committing a constitutional violation.

Keep in mind that policy considerations are not what is at stake here. What is wise is not always legal (and conversely).

Cheers,