That’s what SCOTUSblog is reporting about Citizens United v. FEC; Austin v. Michigan Chamber of Commerce (1990), has been overruled. The majority seems to consist of the 5 conservatives, and the dissent of the 4 liberals. There is also a separate debate about disclosure requirements, which were apparently upheld. I have child duties until noon Eastern, but I hope to read the (long) opinions shortly afterwards, and might have some further thoughts.
BZ says:
And that portion of McConnell which prohibited electioneering communications (mentions of candidates close to elections) was also struck down. First Amendment basis, so applies equally to state and fed’l elections.
January 21, 2010, 10:11 amBZ says:
Opinion cite:
http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf
January 21, 2010, 10:16 amK Dackson says:
Interesting that they waited until after the governor’s races in VA and NJ, as well as the MA special election.
Think this was a deliberate delay?
January 21, 2010, 10:20 ambpbatista says:
A good day for the 1st Ammendment.
Another not so good day for Liberals and their efforts to control and regulate every facet of society including speech.
January 21, 2010, 10:24 amArthurKirkland says:
Is the next step a decision entitling unions to fund political speech from a general treasury without requiring refunds to
freeloaderscertain members? If a shareholder is required to tolerate use of corporation funds for political speech selected by those who manage the corporation, why would a union member not be required to tolerate use of union funds for political speech selected by those who manage the union?A sufficiently disgrunted shareholder can sell shares; a sufficently disgruntled union member can find new employment.
January 21, 2010, 10:25 amFederal Farmer says:
Given the length of the opinion and dissent and the separate concurrence/dissent, I imagine it took quite a bit of time to get drafted.
January 21, 2010, 10:26 amRecovering Law Grad says:
Can someone explain the nature of a corporation’s First Amendment right for me?
Corporations do not have to exist – they are creations of law. Delaware could simply abolish the corporate form all together, right? If so, what prevents Delaware from creating a corporate form that excludes the ability to spend money on political campaigns?
January 21, 2010, 10:31 amJay says:
K Dackson–Well, issuing the opinion before the November elections would’ve given the court less than half the time it did take to write the opinion (Sept 9-Jan 21), so I would think the timing had more to do with the effort involved than any political considerations.
January 21, 2010, 10:31 amK Dackson says:
Or they can organize to decertify the union.
January 21, 2010, 10:33 amKen Arromdee says:
We don’t have industry-wide shareholders the same way we have industry-wide unions. A shareholder can go to a similar company which has different corporate speech. A union member can’t go to a similar company with a different union.
Also, your argument doesn’t apply when the union member is in a government job. And besides, this case isn’t about a disgruntled shareholder anyway.
January 21, 2010, 10:33 amArthurKirkland says:
Conservatives are greatly outnumbered in the Senate and House. A Democrat is president. A quarter of Americans report a favorable impression of the Republican Party. Republican attempts to stifle science-related speech in schools, to prohibit flag-burning, and to force regimented prayer in schools continue to be unsuccessful. Conservative nanny-staters are losing ground to public opinion on gay-bashing, the criminalization of certain mind-altering substances, abortion gag rules, broadcast censorship, and similar issues every day.
Don’t cry for liberals or the libertarian-liberal alliance. The situation could change, but every day in today’s America is a good day for those who wish to protect freedom from the conservative nanny-staters.
January 21, 2010, 10:35 amAlast says:
Assuming they could, there are still 49 other states that recognize them, and Delaware has to give FF&C to those other 49 state’s.
Various treaties also require states to respect similar acts of foreign countries.
January 21, 2010, 10:37 amArthurKirkland says:
A person can always get another job, just as he can always transfer assets to a different investment. Unions and corporations seem indistinguishable, to my eye, with respect to the Citizens United issue.
January 21, 2010, 10:37 amruuffles says:
Is there a SC opinion requiring this?
January 21, 2010, 10:39 amFederal Farmer says:
Excellent point. Nanny-staters abound in both parties. The problem is that politicians are government employees in effect, and therefore many don’t want to limit government’s power.
January 21, 2010, 10:39 amRecovering Law Grad says:
Alast – Understood. I’m just using Delaware as an example. My basic question is: how is that corporations can have First Amendment rights when they are created by statute and need not exist in the first place?
January 21, 2010, 10:40 amFederal Farmer says:
Because corporations are nothing but voluntary associations of people that have, individually and collectively, First Amendment rights.
January 21, 2010, 10:42 amJohn M. Perkins says:
Wow!
As a left-wringer, I would not have predicted the Stevens and 3 liberals opposition. I still have tone problems with Scalia, but I agree with his concurrence.
Note the Thomas dissent for part IV. That’s an 8-1 split which I would predict might carry over to Doe No. 1 v. Reed.
January 21, 2010, 10:45 amAlast says:
Why do you think one is required? Citizen United just ruled that speech by a corporation is constitutionally protected. Even if Delaware did away with domestic corporations, a N.Y. corporation still has it’s federal constitutional rights intact when it travels or acts within Delaware. Perhaps if all states eliminated corporations, you might have a better argument, but as long as any state recognizes them, and federal treaties recognize foreign corporations, you are stuck with them. Just like Delaware could eliminate marriages in Delaware, a married couple from N.Y. moving to Delaware will still be a married couple.
You are also stuck with all kinds of non-corporation associations of people. A “corporation” is no different than a “cooperative” group in First Amendment rights.
And 1 U.S.C. 1 makes clear that under federal law, “Person” includes corporations.
January 21, 2010, 10:45 amRecovering Law Grad says:
Federal Farmer – Okay. But voluntary associations of people don’t get limited liability just because a certain number of people are in a room and have agreed to join a club. Limited liability, and other corporate rights, only comes from the government. If the government has the right to endow corporations with certain privileges, why can it not also impose certain conditions?
January 21, 2010, 10:47 amKirk Parker says:
AK,
Do corporations and unions have many similar aspects? Sure. But indistinguishable to your eye? Man, I’d love to be your optometrist.
January 21, 2010, 10:49 amruuffles says:
That’s not what I said. I was asking if SC had opined on the question.
January 21, 2010, 10:53 amRT says:
Try telling that to the aprox 20% that are unemployed. What on earth makes you think that the sale of any amount of shares is equal to the disruption of changing jobs, if you can even find another job that pays the same and has the same benifits? Not many people can walk out the door of their job and be working in an equal one the next day. Maybe college or pro football couches can but I certainly can’t.
January 21, 2010, 10:53 amruuffles says:
The gay couple from Massachusetts disagrees.
January 21, 2010, 10:54 amJust Dropping By says:
I’m not sure the Full Faith and Credit clause works quite that way with regard to corporations. I know that most (all?) states have registration requirements for “foreign” (out of state) corporations which those corporations are required to comply with as a condition precedent for being able to initiate lawsuits in that state or to avail themselves of certain other rights that “foreign” (out of state) individuals have automatically. It seems that if that sort of restriction is constitutional, then a state could refuse to recognize the corporate form of “foreign” corporations so long as it also didn’t allow the formation of “domestic” corporations.
January 21, 2010, 11:03 amFederal Farmer says:
As long as those conditions don’t violate the fundamental rights of the corporation’s members, they are welcome to impose them.
January 21, 2010, 11:10 amShelbyC says:
Sounds about right, although some of the special legal protections unions have may be questionable; If there are laws that help unions form closed shops, for example, but I don’t know.
January 21, 2010, 11:15 amAlast says:
Why? I know it han’t been litigated yet — both sides are scared of it. But FF&C requires Delaware to recognize the Massachusetts marriage. Plenty of precedent on that in interracial and foreign marriage cases.
January 21, 2010, 11:16 amFederal Farmer says:
I think the issue is DOMA (Defense of Marriage Act) which I personally feel is a violation of individual rights and of delegated state powers.
January 21, 2010, 11:19 amShelbyC says:
The whole point of having “rights” is that the govt can’t bestow certain priviledges on you for giving them up, just as they can’t create a special tax break for people who are willing to give up their right to freedom of religion and practice Christianity.
January 21, 2010, 11:20 amFederal Farmer says:
Yep, it seems many forget the meaning of “unalienable”. Of course since they seem to ignore “Congress shall pass no law” and “shall not be infringed” I suppose it might be asking too much.
January 21, 2010, 11:23 ambyomtov says:
A sufficiently disgrunted shareholder can sell shares; a sufficently disgruntled union member can find new employment.
This argument is total BS.
First of all, many people don’t even knpow what shares they own. If you hold stock indirectly, through a mutual fund or pension plan, say, you simply don’t have the information, and it changes daily or hourly anyway. Second, if you’ve made an astute investment why should you sell it just because the managers want to give away some of your money? Let them give away their own.
As for disgruntled union members, you’re suggesting that they leave well-paid jobs, where they may have considerable seniority, for something worse – maybe much worse.
This decision is purely ideological. There is nothing in any restriction on corporate speech that prevents any individual from exercising First Amendment rights to support or oppose a candidate.
January 21, 2010, 11:37 amArthurKirkland says:
The liability limitation granted to corporations (shareholders) is the special legal protection of all special legal protections.
January 21, 2010, 11:40 amA. Criminal says:
The majority seems to consist of the 5 conservatives, and the dissent of the 4 liberals.
Are we supposed to pretend that this is an august ‘n’ respectable body of jurists rather than just a bunch of appointed politicians? How can the liberals get away with claiming to not understand the meaning of “Congress shall make no law”? Are they all remedial reading special-ed types, or just the new one?
January 21, 2010, 11:44 amFederal Farmer says:
I haven’t found their legal status, but I suspect that most Unions are corporations themselves. Perhaps using a 501(c) status of some sort.
January 21, 2010, 11:51 amegd says:
The ability to tax non-union employees to pay for union benefits for which they are ineligible seems like another particular special legal protection.
The ability to coordinate threats and assaults without legal repercussions also seems particularly special.
January 21, 2010, 12:00 pmCharles says:
Please read http://en.wikipedia.org/wiki/Government_speech
January 21, 2010, 12:09 pmKharn says:
Unleash the NRA. The 2010 elections are going to be fun. :-D
January 21, 2010, 12:52 pmzuch says:
Corporations, as creations of the government, should be subject to whatever restrictions the government wants to place on them. They are not “persons”. The government is their only parent.
Cheers,
January 21, 2010, 1:04 pmzuch says:
The NRA hasn’t been unleashed?!?!? And what makes you think the NRA’s message has resonance outside the NRA and its aficionados? You just got your Heller. What are you going to campaign on? Prohibition of taggants in explosives again?
Cheers,
January 21, 2010, 1:06 pmFederal Farmer says:
Contrary to common perception, the NRA doesn’t typically fund any campaign. They do, however, air commercials relating to their advocacy, as do others and the net change here is that they can air them closer to an election.
January 21, 2010, 1:08 pmFederal Farmer says:
Disagree. Corporations are voluntary associations of people. They are comprised of, and directed by human beings. All of their actions, at root, are initiated by human beings. There is nothing ‘evil’ or ‘nefarious’ about a corporation that isn’t caused by one or more persons directing said corporation (see Enron/Ken Lay).
January 21, 2010, 1:12 pmShelbyC says:
Wow. That’s a pretty broad statement. So no problems making it illegal for black people to form corporations? Or requiring corporations to acknowelege the lord Jesus Christ?
Or from a more narrow point of view, how about, instead of banning electioneering communications, a law that banned communications advocating the election of a Democrat, or communication advocating the continued legalization of abortion? No first amendment problems?
January 21, 2010, 1:22 pmDavid M. Nieporent says:
You think the government can say, “We’ll allow your club limited liability if you agree not to criticize politicians”?
January 21, 2010, 1:22 pmCharles says:
Please read http://en.wikipedia.org/wiki/Government_speech
January 21, 2010, 1:40 pmShelbyC says:
I read it. Now please explain how it’s germane to the two comments you posted the link in reply to.
January 21, 2010, 1:46 pmyankee says:
Not at all. If formed for profit by a single owner, it’s a sole proprietorship with no legal distinction from the owner. If formed by multiple individuals as co-owners in a business for profit, it’s a general partnership. If it’s not for profit, it’s an unincorporated association which may or may not exist as an independent legal entity. A corporation is much more than a voluntary association: it’s a entity created by filing certain documents with the state and with various statutorily defined rights and powers, including the power to act in its own name. The various shareholders, officers, directors, and employees are free to speak, including collectively, using their own assets; it is another thing to say that the officers may direct the corporation to speak using the corporation’s assets, which neither they nor the shareholders actually own.
January 21, 2010, 1:52 pmFederal Farmer says:
I agree with your various definitions, but disagree vehemently that the officers of a corporation cannot direct the funds of the corporation in any manner in which they are empowered to do so by the corporation’s charter.
January 21, 2010, 1:57 pmShelbyC says:
Why is that so different?
January 21, 2010, 2:00 pmyankee says:
You’re correct that have a statutory right to do so. But it is another thing to say that they have a constitutional right to do so.
January 21, 2010, 2:03 pmFederal Farmer says:
The government has no enumerated power with which to prevent them from doing so. Also, the government is prevent from creating a law to restrict their freedom of speech, which flows from their member’s freedom of speech, individually and collectively.
January 21, 2010, 2:05 pmDavid M. Nieporent says:
Okay; I read that. What do you think is the relevance of that? Citizens United is not the government. Citizens United is not funded by the government.
January 21, 2010, 2:11 pmegd says:
The shareholders of a corporation don’t actually own the assets of the corporation?
January 21, 2010, 2:14 pmzuch says:
Great. We can dispense with the “corporate veil” then, eh?
Cheers,
January 21, 2010, 3:00 pmzuch says:
Any blacks have a perfectly valid EP claim. What “corporation” here would have standing to sue?
Cheers,
January 21, 2010, 3:02 pmTed says:
Can corporations vote? And why is spending money equivalent to speech/expression? Do corporations have a consitutional right to support organizations suspected of terrorism if they do so only monetarily? If not, and they do so illegally, are the owners/directors of the coporporation considered to have supported terrorism voluntarily and individually?
January 21, 2010, 3:04 pmFederal Farmer says:
Since the ‘corporate veil’ serves to protect private assets of individual members of a corporation from corporate liability and has nothing whatsoever to do with how corporate assets are managed or dispensed, I fail to see the relevance.
January 21, 2010, 3:06 pmkiwi dave says:
Technically, no. They own the equity of the corporation (essentially, the corporation owes them money), but the corporation’s assets belong to the corporation, and not to the shareholders.
January 21, 2010, 3:07 pmFederal Farmer says:
No.
Everyone is allowed one vote in elections, so voting through a corporation wouldn’t make sense. Speaking through one is a different matter.
January 21, 2010, 3:07 pmKharn says:
The NRA’s PAC has been doing its job, but it’s budget and annual donations are well below that of the real NRA. 80 million Americans own a gun, only ~4 million are NRA members but you can bet more than a few of the other gun owners listen when the NRA goes on the warpath about an issue. Nation-wide concealed carry (mandatory reciprocity and shall-issue) is next.
January 21, 2010, 3:12 pmzuch says:
At the risk of hearing “Wickard v. Filburn!!!” shouted at me: It would seem a no-brainer to see Commerce Clause involvement in regulating corporations.
Cheers,
January 21, 2010, 3:12 pmShelbyC says:
Fine. Change the hypo to a law making it illegal for corporations to hire black folks. And what about a hypothetical law making it illegal for corporations to advocate the election of a Democratic candidate?
January 21, 2010, 3:15 pmFederal Farmer says:
At the risk of hearing “Wickard v. Filburn!!!” shouted at me: It would seem a no-brainer to see Commerce Clause involvement in regulating corporations.Cheers,
Of course we weren’t arguing that government cannot regulate corporations in any way. If you don’t intend to elaborate on the weight of the governments interest in regulating a corporations speech with respect to elections, then maybe you shouldn’t bother tossing out generic statements that don’t further the conversation.
January 21, 2010, 3:17 pmShelbyC says:
The law at issue here bans spending money on electioneering communications. The court believes that a ban on spending money for certain types of speech is an infringement on free speech.
January 21, 2010, 3:19 pmzuch says:
I can sue a “voluntary association of people” individually and collectively for their misdeeds. A corporation cannot be a “voluntary association of people” (nor it is so defined by any laws of incorporation).
Cheers,
January 21, 2010, 3:19 pmShelbyC says:
To the extent that the govt allows you to do so, sure. But the government can’t make your ability to sue people depent on the target’s exercise of political speech.
January 21, 2010, 3:24 pmzuch says:
“N&P”. It is your burden to show that some other provision of the Constitution makes any such regulation invalid as applied to a “corporation”. First task is explaining, if there is such a thing as corporate “personhood”, why they can’t vote. Or am I (and everyone else) wrong about that as well?
Cheers,
January 21, 2010, 3:26 pmFederal Farmer says:
Of course we weren’t arguing that government cannot regulate corporations in any way. If you don’t intend to elaborate on the weight of the governments interest in regulating a corporations speech with respect to elections, then maybe you shouldn’t bother tossing out generic statements that don’t further the conversation. “N&P”. It is your burden to show that some other provision of the Constitution makes any such regulation invalid as applied to a “corporation”. First task is explaining, if there is such a thing as corporate “personhood”, why they can’t vote. Or am I (and everyone else) wrong about that as well?Cheers,
That has all been defined decades ago. You can sue a corporation, how else did Alaska (a corporation) sue Exxon?
Corporations have much the same due process protections and people do. They also probably have the same equal protection, which then extends to them the same P+I.
January 21, 2010, 3:34 pmegd says:
As owners of the corporation, the shareholders (collectively) can take any action consistent with property ownership, they can buy, sell, lease, or otherwise deal with the property of the corporation as they see fit.
The ownership of a share of a corporation is most certainly ownership over a portion of the corporate assets. While a shareholder has no separate individual right to the corporate assets, the shareholders collectively can do whatever they wish.
I can consider myself a homeowner, despite the fact that it is jointly held by me and my wife and I have no ability to transfer or create an interest in the house without her consent.
January 21, 2010, 3:36 pmOwen H. says:
My biggest concern here was a group apparently violating a law that most others were obeying, a distinct and unfair advantage. As long as it applied to all corporations, I was ok, but now that it has been found unconstitutional, I look forward to all the other ads we’ll see. I also expect the Republicans to stop whining about Soros spending money. Nor do you get to complain about unions doing so any more.
January 21, 2010, 4:02 pmFederal Farmer says:
I suspect we’ll see all the same ads we see now, just they’ll be aired all the way to poll time.
January 21, 2010, 4:07 pmShelbyC says:
What does corporations voting have to do with anything? Corporate personhood is a metaphor, a legal fiction that creates an artificial entity that is treated in some respects as a “person”.
January 21, 2010, 4:45 pmTed says:
Well, if corporations have a constituional right to freedom of expression under the 1st amendment, why are they denied voting rights? It seems odd that the constitution protects a corporation’s right to spend an unlimited amount of money supporting — or denigrating) — a political candidate, but cannot actually cast a vote for the favored — or opposing — candidate. I mean, if we’re going to grant fundamental, constitutional rights to a corporation, why be half-ass about it?
January 21, 2010, 5:12 pmShelbyC says:
Well, keep in mind that corporate personhood is a designation of convienience. We treat corporations an an entity with interests under the law, but that’s just fiction, the “interests” of a corporation are derivative of the interests of the shareholders. Same thing with first amendment “rights”, which are just derivative of the rights of the corporation’s shareholders.
January 21, 2010, 7:05 pmTed says:
So, the argument is that the corporations’ right to free speech is derived from the shareholders’ rights to free speech? I don’t see how that resolves the disconnect between the first amendment and other rights. Why can’t a corporation’s right to vote be derived from its shareholders’ rights to vote? Or bear arms, or have and attorney, or testify against itself. I mean, all of the people who make up the corporation have these rights…
As for a corporation being a legal fiction, fine. But the constitution shouldn’t protect the rights of a fictitious entity, only real people. Because government created corporations, the government should be able to limit any actions of corporation, including depriving them of due process, etc.; whatever the people desire. After all, couldn’t the government, under the commerce clause, refuse recognize the existence of corporations?
January 21, 2010, 7:24 pmShelbyC says:
Certainly the govt could refuse to recognize the existance of a corporation. And if it did so, how would it prevent individuals organized in the corporate form from engaging in electioneering communications? It would have to punish the shareholders. And that’s exactly what this law does. Punishing corporations for engaging in electioneering communications is really punishing shareholders for the speech that their employees engage in on their behalf, just as surely as punishing partners for money spent of electioneering communications on behalf of the partnership would be. The only difference is that it’s done under the guise of corporate personhood.
January 21, 2010, 8:04 pmdave h says:
The point isn’t that the corporation has the right to free speech – it’s that the people have the right to free speech, and they don’t lose that because they choose to exercise that right through a corporation, which is often the most effective vehicle for doing so. Similarly, the people have a right to vote, and they do not lose the right to vote because they have formed a corporation.
January 21, 2010, 9:01 pmzuch says:
Oh. So corporations have a right to be sued. Wow, I bet they appreciate that.
But can they vote? After all, that is an individual right….
Cheers,
January 21, 2010, 10:41 pmzuch says:
Thank you. So nothing in the Constitution requires that they be treated as a person.
Cheers,
January 21, 2010, 10:45 pmzuch says:
Free speech law allows TPM restrictions. You knew that, didn’t you?
Cheers,
January 21, 2010, 10:49 pmegd says:
That’s true, but the statute at issue didn’t prohibit individuals from donating to a campaign or making campaign ads, it prohibited individuals acting collectively from doing so.
Government cannot condition expression of a right on the identity of the person or group exercising that right.
January 22, 2010, 8:33 amShelbyC says:
Nope. Nothing. Nada. Que-Dalle. Nice when we agree. Now what?
January 22, 2010, 9:31 amFederal Farmer says:
Rather than toss off truisms, how about fleshing out your response and tell us all how those time/place/manner restrictions serve an important government interest of such a magnitude that it overrides the fundamental First Amendment rights of the people who are directing their speech via their corporate entity?
Otherwise, you are simply trolling and being deliberately obtuse.
It is plain to see how using a corporate entity as a vehicle for expressing the First Amendment rights is nothing like using a corporate entity in order to amplify your vote (by voting individually *and* collectively). Such arguments are fallacious.
January 22, 2010, 10:30 amraoul says:
test
January 23, 2010, 4:47 pm