From the majority opinion:
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak — and it does not — the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, and file an organization statement and report changes to this information within 10 days.
And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur: “‘These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate’s authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation.’”
PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.
Sammy Finkelman says:
Rush Limbaugh just a few minutes ago more or less quoted (he paraphrased or omitted technical words like “nonprofit advocacy corporations” and
January 21, 2010, 12:36 pm“section 441b”) from the first five lines of the opinion quoted here.
byomtov says:
So the majority is unable to distinguish between organizations like the NRA, the ACLU and the Sierra Club on the one hand, and ExxonMobil, Microsoft, and General Electric on the other?
January 21, 2010, 12:38 pmSammy Finkelman says:
Right. The laws doesn’t, anyway. Citizens United was nonprofit, like the NRA, the ACLU and the Sierra Club.
January 21, 2010, 12:41 pmSammy Finkelman says:
Rush Limbaugh is or was discussing this more and quoted or paraphrased some more of the decision. He’s now wandered off into discussing senator Kerry and the Democrats reaction to the Massachusetts election. (That they will pretend to have a new attitude).
Whatever Rush Limbaugh said or says about this (and other things) should be available to all for free between about 5:15 PM today and 5:15 tomorrow on his website at http://www.rushlimbaugh.com. There should alsos be a few links at the end of the transcript section.
January 21, 2010, 12:45 pmChris Travers says:
Correct, and for good reason.
Citizens United was an organization for advocacy, and a nonprofit, like the NRA, ACLU, and the Sierra Club. However, some of their financing came from for profit corporations.
Would you deny the organizations you name a right to speak just because some corporations donated to them? If not, how do you differentiate nonprofit advocacy corporations (like industry associations) from groups like the ACLU? What if the nonprofit is wholely owned by a for-profit corporation or for-profit corporations?
I think a line between such organizations is fundamentally unworkable and would just lead to larger corporations gaming the system, while smaller corporations would be excluded.
January 21, 2010, 12:45 pmDerHahn says:
That’s right, bymotov.
To hell with the Legislature, so long as the judges are making laws the Left likes.
January 21, 2010, 12:50 pmADF Alliance Alert » Supreme Court rolls back campaign spending limits says:
[...] at the Volokh Conspiracy: The First Appearance of the Word “Blog” in a Supreme Court Opinion The Scope of the Ban at Issue in Citizens United Citizens United on the Deterrent Effect of Complex Speech Restrictions Citizens United on the [...]
January 21, 2010, 12:58 pmTamerlane says:
This would be a good point if a similar distinction were written into the First Amendment
January 21, 2010, 12:58 pmDakota Loomis says:
As Chris just pointed out, money is like water and will find its way through any cracks in the system to its intended target(s). Trying to impose regulations on speech based upon vague classifications of corporate purpose or funding source is impractical, unwarranted and unworkable. I’d also argue it’s fundamentally unjust, but that’s a normative judgment based upon my personal beliefs and experience with the political process and speech.
Just give me daily updated finance reporting that can be accessed online with no restrictions on donation amounts and I’ll be happy. There will still be some gaming of the system through the creation of shell corporations to work as donors, but the increased transparency and decreased onerous regulations would make for more honest and open elections without the unnecessary bureaucracy and regulations.
January 21, 2010, 1:23 pmyankee says:
This is a most unfortunate development. It’s even worse than the old soft money system, because it’s much less transparent.
Now it will be even easier for corporations to buy legislators. Sadly, there is no way an anti-corruption amendment can be passed, because the corporations who benefit from corruption will buy the legislators with the power to pass it.
January 21, 2010, 1:26 pmChris Travers says:
Do you think this decision is bad law? Or just bad policy?
If bad law, on what basis?
January 21, 2010, 1:37 pmAbdul Abulbul Amir says:
The majority can so distinguish. The law struck down did not. BTW, since GE owned NBC they had the means to say whatever they wanted unlike most other big corporations.
January 21, 2010, 1:45 pmfwb says:
Interesting that the Constitution grants only criminal sanction authority to Congress in approximately 6 areas. These are granted in three simple statements. ALL other police powers are left to the States. Congress never had the authority to pass such legislation because Congress never and still does not have the authority to provide for criminal sanction except in the 6 areas enumerated in the Constitution.
Ejits!
January 21, 2010, 1:53 pmyankee says:
Not really interested in arguing the “bad law” issue, but it’s not just bad policy, it’s disastrous policy. If the First Amendment’s conception of “freedom of speech” really includes de facto corruption, that’s a serious flaw in the First Amendment. Sadly, the right to corruption the Supreme Court has found makes a constitutional fix impossible.
January 21, 2010, 1:59 pmChris Travers says:
So it is impossible to pass a Constitutional amendment allowing prior restraint on corporate political speech aimed at influencing elections?
January 21, 2010, 2:18 pmJames N. Gibson says:
Two decades ago Mike Roos told people it was perfectly correct for him to take money from the gun control movement because they were a “public” interest group. At the same time his opponents were bad because they took money from special interest groups like the NRA. People make distinctions in order to legally hamstring their opponents.
January 21, 2010, 2:22 pmPessimist says:
Will be interesting to see how much the banks and insurers spend in this election cycle. Regardless of the particulars or merits of financial/health reform, one would expect future regulations and legislation to even more strongly reflect the interests any highly regulated business, esp banks and insurers. I would definitely invest in financial/health stocks at this point (and I am, given they fell several % today).
January 21, 2010, 2:48 pmBZ says:
This should probably go in a thread by Prof. Anderson, but here’s my take:
Today the Supreme Court of the United States released the long-awaited decision in Citizens United v. Federal Election Commission. The decision struck down limits on independent expenditures by corporations, including nonprofit corporations. As is common with these complicated and volatile decisions, however, some of the coverage in the media is distorted.
The decision only applies to “independent expenditures,” not contributions to candidates. This distinction is fundamental to the thinking behind campaign finance regulation. The older rationale, known as the “anti-corruption principle,” says that direct contributions to candidates and campaigns have a unique potential to generate quid-pro-quo corruption. History amply demonstrates that this potential becomes reality in a disheartening number of cases. The anti-corruption rationale was upheld strongly today, when the Court majority found that corporate contributions to candidates would continue to be prohibited.
It was the newer (1990) “anti-distortion” rationale which was struck down. The anti-distortion rationale says that massive infusions of corporate speech into the “political marketplace” will distort campaigns, and so direct corporate speech should be restricted. The Court majority, after looking through hundreds of thousands of pages of evidence introduced in court cases this decade and finding no real evidence of such distortion, disagreed saying:
“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” Slip Op., P. 40.
The clincher was that “independent expenditures presuppose that the people have the ultimate influence.” P. 44. Thus, the anti-distortion scheme was struck down, so corporations can speak freely to voters so long as the danger of quid-pro-quo corruption is minimized. Hence, the channel offering the lower possibility of quid-pro-quo corruption — independent expenditures — would be permitted. “We return to the principle in Buckley and Bellotti that the government may not suppress political speech on the basis of the speaker’s corporate identity.” P. 50.
And the Court let stand a specific mechanism to help police against corruption. Eight members of the Court upheld the disclosure and disclaimer requirements (which require specific information to be appended to all ads) because they allow people to evaluate the arguments. “People have an interest in knowing who is speaking about a candidate shortly before an election.” P. 54. “The First Amendment protects political speech and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to differing speakers and messages.” P. 55.
This case was based on the principle that more information is better. The anti-distortion rationale limited speech; the anti-corruption principle permits more speech unless the danger of corruption is amply demonstrated.
January 21, 2010, 2:50 pmOff Kilter says:
Granted this is a completely different tangent, but recently Orin Kerr “debated” Randy Barnett here on the issue of whether the SC would ever conclude an individual mandate in the healthcare bill–requiring forced purchase of a private service–was constitutional. I believe Kerr (and others–I think this the majority position) argued on stare decisis grounds that of course it would be accepted as constitutional.
So the question arises, given this latest SC judgment, soundly invalidating precedent, cause anyone to rethink on the individual mandate issue?
January 21, 2010, 2:54 pmohwilleke says:
The last point should dispel hysteria about this ruling, particularly given that disclosure requirements remain in force.
There are only 2000 PACs. There are more corporations contributing, because some PACs serve more than one firm, but the vast majority of corporations are fairly small, closely held entities where there is little downside to going the simple route of writing a check as an individual rather than as a corporation. And, a majority of 20,000 give or take, publicly held companies have decided that it is better to simply hire lobbyists and join trade associations that lobby for them, rather than putting the corporation’s name on a campaign contribution which could be a PR disaster.
January 21, 2010, 2:58 pmErick says:
So advocating a position with a 30 second commercial is the same as bribery. That makes perfect sense.
January 21, 2010, 3:01 pmEH says:
For those who wished this decision had gone the other way, isn’t the real problem the fact that Santa Clara County v. Southern Pacific Railroad still stands?
January 21, 2010, 3:03 pmsnarky snark says:
In response to byomtov:
While it’s irrelevant to the issue in the case, I’ll try:
One set are self-interested rent-seekers trying to maximize their income and their control of the world. The others serve the public interest and ask for voluntary payments in return.
January 21, 2010, 3:04 pmbyomtov says:
Would you deny the organizations you name a right to speak just because some corporations donated to them? If not, how do you differentiate nonprofit advocacy corporations (like industry associations) from groups like the ACLU? What if the nonprofit is wholely owned by a for-profit corporation or for-profit corporations?
I would not let corporations support candidates, whether directly or indirectly. If they want to engage in advocacy on a specific issue they can do it by hiring lobbyists, etc. I think it’s fairly obvious that there’s a huge difference between a profit-making corporation and an advocacy goup, even though both may be organized as corporations. A non-profit “wholly owned by a for-profit corporation” is an arm of its owner.
January 21, 2010, 3:13 pmMatthew in Austin says:
Thanks BZ – that is a great breakdown of the ruling, and really helped me understand the difference with which the court views direct contributions versus paid advertisements.
January 21, 2010, 3:20 pmChris Travers says:
But that doesn’t get you very far. If you even say a non-profit which is majority-owned by a corporation, that doesn’t prevent three corporations from founding an interest group each with equal ownership. If you then say for-profit corporations in aggregate cannot control the corporation, I am not sure that has a basis. Certainly it is not an arm of a specific corporation.
So, you think the NRA should be unable to run adds saying “when you go out to vote this Tuesday, please remember about how important our second amendment rights are?”
January 21, 2010, 3:24 pmloki13 says:
There’s a book that was released some time ago- Honest Graft. I think it is quite instructive. It’s a WSJ reporter’s account of money in the political system during the 70s-80s. Some of the damning portrayals are of Tony Coehlo (sp?), the lead democratic fundraiser of the time, who gave the reporter unprecedented access- because nothing he was doing was *illegal*.
Money is a huge problem in our political process. The worst. What is the problem of a “30 second ad” you ask? Well, here’s what happens. Congressman A is told that if he doesn’t support/oppose Bill B, then groups X, Y, and Z will all run 30 second ads against him. Given the rational ignorance of our electorate today, these ads are incredibly effective. Because of this, bills get passed in Washington not based on any merit of the underlying issues, but, instead, based on the amount of money that can be spent in support of the issue (think of rent-seeking). This causes our system to fundamentally favor those who already have money (think- corporations) over those who don’t. But it is also bad policy- corporations will be spening money to, inter alia, keep competitiors out of their market, which distorts our capitalist system.
This is just bad. I am a First Amendment zealot. But their has been a steadfast refusal of too many to recognize the fundamental problems that money has caused in our Republican form of government, problems that did not exist at the founding. I’m not sure what the correct solution is, but I also know that our current system is untenable.
January 21, 2010, 3:32 pmmarkH says:
Every independent expenditure in support of a candidate or against a candidate’s opponent represents funds that will not have to be spent by that candidate. The distinction between “independent expenditures” and “contributions” is small enough to be nearly non-existent when talking about corruption or quid pro quo.
Regarding transparency: does the
January 21, 2010, 3:38 pmlegislationruling have anything to say regarding astroturfing?PLR says:
Plutocracy is less desirable than representative democracy. Normatively speaking.
Next.
January 21, 2010, 3:47 pmMike McDougal says:
Why do you hate the constitution?
January 21, 2010, 3:50 pmChris Travers says:
So are judges responsible for deciding policy preferences? I didn’t think so but then I might be a bit old fashioned in this regard.
January 21, 2010, 3:59 pmMark Field says:
Yes, in my view.
January 21, 2010, 4:06 pmPLR says:
No doubt Scalia, Thomas, Roberts and Alito would say you are old-fashioned. Not sure about the others.
January 21, 2010, 4:31 pmFedya says:
Big Government has enormous power to *uck up our lives. (I’ll let you pick the letter you want to go in place of the asterisk.) It’s the most natural thing for people to want to influence Big Government so that it’s *ucking up somebody else’s life.
The obvious solution is for Big Government to have less power to *uck up people’s lives. But politicians are addicted to having control over people’s lives, and would respond to such a suggestion like a heroin addict who can’t get his fix.
January 21, 2010, 4:33 pmChris Travers says:
Really? As opposed to who?
or do you think the court must have been smoking something really good to write the O Centro opinion?
January 21, 2010, 4:41 pmme again says:
Anyone here care to address the issue of corporate personhood and this affects it?
January 21, 2010, 4:46 pmtherut says:
The above states the true problem. People in any form (individual, money bombs, associations, unions and yes corporations) petitioning their .gov for redress of grievences is a constitutional right. The only way to “gore” those you do not like is to decrease the scope and power of .gov. Thus liberals want to try and shut up those they disagree with instead. All the time spent during Bush years of the media(pushing the left line) on the subject is now moot and was a waste of time.
January 21, 2010, 4:51 pmChris Travers says:
Corporate entities are artificial persons, which are endowed with the necessary characteristics to exist in our system (see . IMO, that includes all procedural guarantees of fairness that affect individuals as well. As Justice Marshall put it:
Existing in our system of laws means being subject to them. It also means having all due process guarantees that a natural person would have when sued or tried before our legal system.
However, what about free speech rights? Corporations advertise their products and present public images. Therefore they have at least some rights to free speech. I don’t think any interpretation of the First Amendment could allow Congress to ban IBM from putting forth a web page describing how the company thought the election of various candidates would affect them.
However, there is a second important element here as well. When a person is subject to an unfair policy that person can take the matter up in the court of public opinion. I don’t see why that would be different for non-natural persons as well.
The right to vote or to hold public office, on the other hand, extends no more to corporations than it does to aliens. Perhaps that could be changed in the future, but it would require a Constitutional amendment and so really there shouldn’t be an immediate fear of that happening.
There is some dicta in this opinion I am not entirely sure about, but it seems to me that the statute in question is facially, and fatally, overbroad.
January 21, 2010, 5:08 pmloki13 says:
Wow. Incredibly insightful. You know who else has the ability to muck (my letter!) up your life? Corporations. Your boss. Courts. The police. Your neighbor. Your wife. A stranger with a big stick and a bad attitude. And so on.
Here’s the difference- the government is, theoretically, repsonsible to We, the People. Unfortuntely, more and more, it is simply responsive to Cash Money. On both the Federal (this case) and the State (the followup cases) we will see the unfettered influence of money on elections.
The worst government money can buy. Perhaps we deserve no better.
January 21, 2010, 6:01 pmgrog says:
I do have to agree with those arguing that, legal issues aside, this is bad policy.
– The outcome is going to be more money chasing politicians with less disclosure of where it is coming from. Two of the sides of this are (1) more money only raises the stakes and reduces the fabled middle-class’es influence, and (2) it will be harder to know who’s interest this money is advancing. It would be wonderful if every political decision were simply a matter of principal, but “follow the money” is a cliche quoted by those of every political stripe for a reason.
– I don’t see how laws against foreign influence on elections can be practically policed – money is fungible, and corporations with significant overseas ownership interests will certainly be spending money on influencing outcomes. (Honestly, this is not that big of a concern to me, but I know that many fear it, and I have trouble how those who fear the influence of references to foreign law wouldn’t also fear, say, China indirectly spending heavily on elections.)
– I suspect we’ll start seeing claims of failure of ficundiary duty, due to failure to support political outcomes favorable to the company, leading to lawsuits within companies capable of being large investors in the new political market as proxy wars for different political positions. If this comes about, it will be an ironic use of the reason for corporations in the first place – profit maximization – against that very goal.
– Another troublesome outcome will be corporations currently receiving subsidies will turn around and use that money to support outcomes that bring them even more. In effect, taxpayers who wish to reduce subsidies will be competing against corporations spending the taxpayer’s money to ask for more.
January 21, 2010, 6:16 pmToby says:
It’s all quite simple.
If you want to control the influence of money over politics, reduce the influence of politics over money. When government contacts and government policies are the single biggest influence in whether you, or your corporation make money this year, then you will find a way to spend money to influence that.
Small Government ==> small economic control ==> small return on investment ==> small dollars in politics.
January 21, 2010, 6:39 pmTed says:
What about the interpretation that the 1st amendment applies only to individuals? What language in the constitution requires that the 1st amendment, as other fundamental rights, apply to corporations but not other rights? Do corporations have a second amendment right to bear arms? Why can’t they vote? I mean, what constituional principles make these rights inapplicable, but require 1st amendment protections?
As for your IBM example, I would be fine banning IBM, as a corporation, from promoting a candidate on its website. But I don’t think that congress should be able to ban the CEO, or any other person, from speaking about a candidate or his influence IBM’s business. Persons have the constitutional right to speak, corporations should have no such constitutional right.
Also, IMO, funding speech is distinct from speaking. Indeed, speaking comes with risks, e.g., defamation suits, private persecution, etc. Funding seems to avoid these risks, even with “disclosure” statements. I don’t think there should be a constituional right to fund political speech, or any other kind of speech.
January 21, 2010, 6:43 pmSarcastro says:
Here’s the key: when corporations can do whatever they want, they won’t need to pay off the government!
Problem solved!
January 21, 2010, 6:51 pmShelbyC says:
Sarcastro, you forgot the brackets.
January 21, 2010, 6:59 pmShelbyC says:
Sort of. As long as people vote based on 30 second TV ads, then he who controls the 30 second TV ads controls the country. But the first amendment says the government can’t regulate who controls the 30 second TV ads.
January 21, 2010, 7:07 pmgrog says:
Small Government ==> small economic control ==> small return on investment ==> small dollars in politics.
How do you propose to get to any point in that virtuous cycle deciding that we’ll increase the already large dollars in politics?
Wanting to lose weight is nice and all, but wanting to while consuming ever-larger amounts of calories doesn’t work so well.
January 21, 2010, 7:11 pmChris Travers says:
Does that mean that a sole proprietor has more first amendment rights regarding commercial speech and advertising than a corporation does?
With the rights to vote, and to run for office though you are getting ridiculous. Basically, not every person in our country can do these things, so we are not required to allow corporations to do these things. No, Microsoft didn’t acquire a right to vote 18 years after it was founded.
If they want a right to vote, there is the Constitutional Amendment process…..
As for a right to bear arms, it isn’t even incorporated against the states (yet). And it is also restricted in many different ways. Dangerous felons don’t have such a right, and a corporation having such a right would create a unique problem.
January 21, 2010, 7:14 pmChris Travers says:
Sure, then let’s ban all funded political speech.
People can speak all they want. However all political advertising, all political editorials in newspapers (paid for by the newspapers), etc. will be prohibited.
if you want a campaign sign you have to pay for it (and paint it!) yourself. Presumably commercial products including political messages could be banned too!
Candidates further should not be able to rent out facilities for the purpose of speaking. The news can show up if they want to, but the speech will then have to be done in fully public venues which are free of charge to all….
What do you think?
January 21, 2010, 7:22 pmgrog says:
Sort of.
Well, the First Amendment plus precedent, as of today, says that corporations can’t be left out of the game.
As I mentioned in a different thread here, I don’t see how to square this with 501(c)(3)s not being able to lobby or promote candidates. Either the type of legal construct chosen can impact certain types of speech these government-created entities can engage in (apparently false, after today), or churches would seemingly need to be allowed to retain tax exemption while being able to engage in the same.
At which point, it only makes sense for interested parties to start creating more churches (or PTAs, or take your pick from the category), and we either have a tax exemption for promoting politics, or the IRS determining who gets to be a “church”.
January 21, 2010, 7:24 pmOwen H. says:
Well, at least the Republicans are going to have to stop complaining about Soros and MoveOn.org and unions spending money for political ads.
January 21, 2010, 7:40 pmTed says:
Yes, I think it should. I see a world of difference between a sole proprietorship’s rights and corporation’s rights. There is no avoidance of liability with a SP, like there is with an Inc.; accountability will remain with speaker. A SP is far more likely to have limited resources, and those resources are directly controlled by the SP. A Inc. uses “other people’s money” and can usually generate a hell of a lot more of it.
Finally, of course, a SP is a person, a Inc. is not a person. The philosophical difference between the two is significant, as a commenter on a parallel post pointed out: corporations do not have feelings, desires, etc. They do not go to jail, they do not feel pain. They do not love, and they do not have children or families. A sole proprietor may do all of these things; thus, they have a genuine, real “life” — or “freedom” — interest in any political decisions that might affect him.
For-profit Inc.s, if they are following their legal fiduciary duties to act in the best financial interest of their shareholders, only want to influence politics to make more money, sometimes to the detriment of real persons who do not provide them an opportunity to make more money. If they claim otherwise, they are lying or breaking the law. Neither is a good reason to give them 1st amendment protection.
There are probably more differences, but the reasons noted are more than sufficient to deny 1st amendment protection to corporations, especially without any constitutional principles affirmatively demanding such an extension.
January 21, 2010, 7:52 pmTed says:
I don’t think that’s good policy. The question is whether the 1st amendment prohibits it, if congress (or the states) enact such laws. I agree it’s a difficult issue.
1. Does the first amendment prohibit banning political advertising? Yes. Funding political advertisements by persons not doing the speaking? I don’t think so. If that means you can’t “sell” or “buy” political advertisements, I don’t think that raises a 1st amendment problem. Commercial activity is distinct from speech; the 1st amendment does not give me the right to buy or sell a particular product. I know in today’s culture, the thought of analyzing non-economic terms is scary, but it is still beneficial sometimes.
2. Does a ban on renting out forums to political speakers violate the 1st amendment? Yes. A ban on non-speakers funding the rent? I don’t think so.
The point: money is not speech. It persuades in a very different way than speech. Money enables, speech does not. No matter how well reasoned and justified a political position/argument may be, many people will choose to ignore it if they are convinced that some monetary threshold will be conveyed to them by doing so. If you don’t believe so, you don’t believe in corruption. I don’t think the constitution was created to protect this kind of “persuasion,” particularly in the political realm.
January 21, 2010, 8:26 pmChris Travers says:
However, that doesn’t really get to what I am asking. Namely, when advertising goods and services, can we arbitrarily limit corporations in terms of the content of their advertisements in ways we can’t limit individuals?
Most corporations can be quite easily sued. The only difference is that one cannot sue the shareholders for the corporation’s problems (i.e. investors are only liable for up to the amount of their investments). Officers and directors can be sued to the extent they had responsibility in wrongdoing. Indeed I would bet that most corporations (i.e. single-owner pass-through corporations) have no real limited liability at all. If the corporation is owned entirely by its officers, I am hard pressed to see where limited liability would apply.
So, in your view, if we want to say, “no corporation may portray children in their advertising” can we do this? Can we do this with regard to SP’s as well?
January 21, 2010, 8:30 pmChris Travers says:
OK. I see your division here. But what about Microsoft printing out an election pamphlet. They are funding it. They are speaking. How is this different from the New York Times?
For that matter what difference does it make if NBC prints a pamphlet vs GE printing the pamphlet?
I agree that money is not speech. And I agree that if Microsoft wanted to sponsor a speech by a campaign that would be problematic (and not something the court legalized today, btw). However, the question is whether a corporation has a right to speak at all.
You don’t seem to think so. I think a division between corporate and individual speech is impossible to maintain as a reasonable division.
January 21, 2010, 8:34 pmloki13 says:
Huh? Assuming they are following the formalities of the corporate form, then there would be no piercing of the veil, and no liability would attach. Basic law there.
Corporations (and LLCs, LPs, LLPs, and LLLPs) are entirely constructs of statutory law, designed to shield people from liability. The idea of giving them “rights” is a useful, and needed, fiction in some cases- but the Court has failed to realize that, in the end, it is just a fiction.
January 21, 2010, 9:30 pmChris Travers says:
If the corporation was wholely owned by officers, why would you need to pierce the veil? Just sue the appropriate defendants including the officers responsible.
I guess what I said was overly broad. If it is wholely owned by officers and directors, presumably SOME of the officers could hide behind limited liability. However I would be surprised if there wasn’t someone to sue in most cases besides the corporation.
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