Just to be clear, why don’t you trot out any case you’d like that has held that there is no Constitutional right to vote, and that the 15th and 19th Amendments are just talking about limiting states from abridging state-granted rights (despite the plain text of these amendments)? You’re free to have your own ‘opinion’ on your strained ‘interpretation’, but we’re under no obligation to take your word for it as a final word on such.

Cheers,

Seamus: You need to read more closely. I said there was no *constitutional* right to vote. The references in the 15th, 19th, and 26th amendments to the “right to vote” are references to a right created, not by the constitution, but by state law.

If what you say is true and such “rights” are a creation of state law, then the Constitution can’t protect these rights at all. But it does.

But you’re wrong even here. See, e.g., Article I, Section 2 and Amendment XVII.

Cheers,

ShelbyC:

[zuch]: Where do you get that?!?!? Cites. Page numbers if possible.

Er, isn’t that what the whole fargin case was about? That application of a libel judgement to the Times would violate the Time’s first amendment rights?

Not exactly. As I pointed out, both the pastors that bought the ad and the N.Y. Times that ran the ad were let off. The gist of the decision was as to what was actionable libel (and the establishment of an “actual malice” standard for public figures).

Cheers,

readery: Why the huge difference between the result in U.S. v. Craft and this case?

It could be that the Court in Craft was merely construing a statute. Or, it could be that Craft is wrong.

I am not asking what the previous law was, but how you would distinguish between the two, whether legislatively or via precedent.

New York Times v. Sullivan is actually a very bad illustration of your point. The Court was not asked, and did not decide, whether the freedom of the press extended to the New York Times under its auspices as a media corporation. Most of the time (except, of course, with the Roberts Court’s handling of Citizens United), the Court refrains from answering questions not presented by the litigants. The Court assumed the New York Times’ protection because no one challenged it (at least, per my skimming of the opinion. Quote a portion of it if I’m wrong.)

As to the distinction I would make (though, of course, I do not speak for everyone who disagrees with the conservative majority in Citizens United, or even the dissent): I would follow what I’ve already said before: there is no right to any particular form of association, so long as the basic right to associate for purposes of speech is not unduly limited. Thus, in settings where the corporation is the only effective way to associate for a type of speech, the owners of the corporation are protected in their association. In settings where there are other effective ways of reaching the same goal, the owners of the corporation are not protected in that particular association.

I suspect that media corporations such as the New York Times or CBS or FOX News would pass muster under this standard: Large scale media efforts such as those would be almost impossible without the organizational structure provided by the corporate form. The same logic would probably apply to non-profit advocacy corporations: they are almost identical to media corporations, except that they take a more obvious point of view.

If the only speech at issue is the occasional advertisement for a political candidate, however, I doubt that the corporate form would often be necessary to promote the speech of the owners. It’s possible–again, I’m not an expert in business organization. However, Congress could relatively easily justify a strict wall between corporate funds invested for the purposes of political speech and funds invested for other purposes, as that would not limit the ability of any of the shareholders who wished to speak to do so.

Your question about GE’s ability to “speak” through NBC is based on the fallacious assumption that GE or NBC are doing the speaking. As Professor Somin has pointed out, the right to speak belongs to the owners of the corporations, not the corporations. So, if the shareholders of NBC have the right to speak, and they have a contract with GE whereby they have to express certain opinions of GE’s shareholders, then that is legitimate.

How about this. Treat this as a problem of corporate governance, which it is. A shareholder and an executive won’t have conflicts of interest regarding the outcomes of routine commercial expenditures. With regard to political expenditures, such conflicts will be commonplace. This needs to be guarded against.

Under the commerce clause, let Congress pass a law regulating political expenditures by corporations engaged in interstate commerce. Political expenditures must be approved in advance by shareholders fully informed with regard to the costs and the political positions proposed for support.

Unlike commercial expenditures, the outcomes of political expenditures have implications beyond the mere welfare of the corporation, affecting lives and public policy beyond the corporate walls. This makes the normal corporate practice of voting by share ownership inappropriate. Make the standard for approval 51% of a one-shareholder-one-vote election, without regard to the quantity of shares owned. Make beneficial ownership of shares the standard of eligibility to vote.

In this manner the ordinary standards of political elections can be brought to corporations wishing to participate as good citizens in the political process.

Ak Mike: Dan — I don’t see any legal basis for your claims that a corporation is legally prohibited from expressing any opinion not related to profits.Most articles of incorporation or organization (“charters”) allow the entity to conduct any and all lawful activities.So do most corporate statutes — e.g., Delaware says “all the powers and privileges granted by this chapter or by any other law or by its certificate of incorporation, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business or purposes set forth in its certificate of incorporation.”Now, if the shareholders don’t like the political activities of the corporation, they can throw out the management or even bring a derivative action.So the shareholders can (and should) ultimately controlthe political activities of the entity.But that’s a long way from saying that the corporation is legally prohibited from engaging in political activity, even if that activity is antithetical to the financial interest of the company.

A shareholder can sue the board for taking an action if the board did not have an honest and rational belief that the action was in best interests of of the corporation. See, e.g., Smith v. Van Gorkom.
In applying this rule, Court apply the “Shareholder Primacy Norm” under which directors must favor the interests of shareholders over nonshareholders (ie charity, community, and employees). Directors do have discretion to consider nonshareholder interests, but only if those interests impact long-term shareholder interests. See, e.g. The Shareholder Primacy Norm, 23 J. Corp. L. 277, 277-83 (1998).

In a razor-thin majority, it has apparently overturned its own earlier decisions and also, the wisdom of the legislatures of about half the States in the U.S.A. that have enacted a law (in one form or another) to prohibit the use of corporate financial resources for political campaigns.

Interestingly, an analysis of corruption between those States with the most such regulation and those with the least found very they appear to make very little difference. See, e.g. Milyo, J & Primo, D Campaign Finance Laws and Political Efficacy: Evidence from the States (2006) Election Law Journal, 5(1): 23-39.

I am not asking what the previous law was, but how you would distinguish between the two, whether legislatively or via precedent.

All of these questions revolve around around what is and is not a “media corporation”.

As I suspect you’ve realized, I don’t think there’s a constitutional distinction between the two. However, since you’re referring to the previous law, I assume you’re asking for a legislative distinction, not a constitutional one. I’ll answer your challenge once you identify the portions of the BCRA that created this distinction between media and non-media corporations.

Now, if the shareholders don’t like the political activities of the corporation, they can throw out the management or even bring a derivative action. So the shareholders can (and should) ultimately control the political activities of the entity. But that’s a long way from saying that the corporation is legally prohibited from engaging in political activity, even if that activity is antithetical to the financial interest of the company.

All of these questions revolve around around what is and is not a “media corporation”.

1) Is a large conglomerate like GE a “media corporation” because it is part-owner of NBC and MSNBC?

2) Is GE allowed to opine via the NBC/MSNBC TV channels and websites, but prohibited from doing so through its GE-branded website or GE-branded commercials? Why? What is the distinction?

3) Is Comcast (now also a part-owner of NBC/MSNBC) a “media corporation”? What about a smaller cable company which doesn’t own a TV station or cable channel, but does carry news channels?

4) Is a corporation which covers issues in the news on their website a “media corporation”?

Please provide a legal formulation which distinguishes a “media corporation” from one which is not. “I know it when I see it” is not good enough.

I join JUSTICE THOMAS’s dissent, which points out (to no relevant response from the Court) that a State’s decision to treat the marital partnership as a separate legal entity, whose property cannot be encumbered by the debts of its
individual members, is no more novel and no more artificial than a State’s decision to treat the commercial partnership as a separate legal entity, whose property cannot be encumbered by the debts of its individual members.

Why diss one as a mere “legal fiction” but enshrine the other as having constitutional significance?

As the dissent noted at the time, when state law treats a marriage as a separate entity with independent rights to property separate from the individual spouses, the concept involved isn’t any different from the concept of a corporation. Why should businesses be entitled to the benefit of the concept when dealing with the IRS, but not marriages?

This case puts that question in stark relief. Why should the Supreme Court be entitled to casually diss the concept of a marriage as creating a special legal entity that has legal rights independent of its members, and call it nothing more than a sham and a legal fiction, while at the same time demanding that we treat corporations as if they were something holy under the Constitution, things entitled to the priveleges of citizenship?

Why the huge difference between the result in U.S. v. Craft and this case?

sounds better in writing:
The Court’s unconstitutional conditions doctrine says otherwise. See, e.g., Speiser v. Randall.

Speiser v. Randall only applies if the method actually limits or restrains the speech of the individuals. It hasn’t been shown (or decided by the Court, as far as I’ve seen in the opinion) that requiring people to use other forms of association besides corporations to speak would actually limit their ability to do so.

Lior: Dan: you miss the point.First, a profit-maximizing sugar-growing corporation should lobby for higher sugar tariffs while a profit-maximizing candy-making corporation should lobby for lower sugar tariffs.

precisely. And neither of them can legally express any opinion that is not in line with those profit motives. For instance, neither of these corporations can express the political opinion that there should be a higher minimum wage, even if all the employees and owners believe that to be true.

Thus, the corporations do not “speak for” their employees or owners.

More importantly, certain corporations are formed for the express purpose of facilitating the speech of their owners or employees, or members.For example, Fox News makes money by speaking on political issues, including by having its employees advocate the election and defeat of candidates on-air.The New York Times makes money, in part, by endorsing political candidates in its editorial column and then selling ad space on the opposite page.

Not true. These corporations create whatever speech they believe will earn them money. If their owners or employees hold an opinion that would be likely to hurt the profits of the company (e.g. Lou Dobbs), that opinion has to be muzzled for in order to protect shareholder profits.

Thus, it is simply not true that owners and employees are free to “speak” through a corporation.

ShelbyC:
That depends on their charter.They can be profit making or not profit.They can certainly put in the charter that no assets will be used for political speech.But if I invest in a corporation, I expect them to lobby for whatever they need to make money, and not let the government regulate away my investment.

The point that you and Ilya both miss is that a corporate board cannot take actions inconsistent with the charter of the corporation. Thus, a corporation acts like a machine to effectuate the purposes of the corporation (usually to generate profit). It cannot express the opinions of its “owners or employees” if those opinions are contrary to the purpose of the charter.

Thus, it is wrong to say that “owners and employees” “speak” through a corporation.

I’m not sure that’s true. Commercial and political advertisement are completely different fields, and thus can be dealt with legitimately as separate without raising content-discrimination concerns. It becomes content discrimination when they ban political advertisement for one position or another.

I’m sure that’s true. “Commercial” and “political” are the content of the speech. I think you’re confusing content-based discrimination with viewpoint-based discrimination. The First Amendment permits greater regulation of commercial speech because it is considered to be of lesser value than than political speech, not because the distinction isn’t content-based.

Andrew: Because when the form of your organization depends on society giving you certain allowances, society can demand that you give up some rights in return.

The Court’s unconstitutional conditions doctrine says otherwise. See, e.g., Speiser v. Randall.

I’d be interested to see some actual case law supporting that. I can’t see how a person can, through their own power, forbid others from suing them. Has a court ever upheld that?

Scott Eudaley: But the mere fact that someone else may have a greater ability to promulgate their views does not prevent me from speaking. To interpret “disruptive” in this fashion is to twist it into meaninglessness. The First Amendment does not guarantee that I will be heard or listened to, only that I will not be silenced by action of the government.

You’re right, the First Amendment does not protect you from disruptive speech. It does, however, allow the government to protect you from disruptive speech. The point of that example, though, was how the government can discriminate based upon the form of speech but not based on content. I do not claim, nor do I need to, that corporate speech fits neatly into the disruptive category.

Maybe because American tax law basically requires it? Otherwise it gets incredibly messy as how to divide income, profits, report to federal & state, file taxes etc etc etc.

I’m no expert on tax law, I’ll freely admit. If the barriers in that area were indeed sufficient to prevent the production of Hillary: The Movie except through the use of the corporate form, then under my rule Congress would have to allow the corporate form to speak. However, the Court did not address that, which is really the point. The rule created by the conservative majority is incorrect.

Bruce B: If government created entities are not entitled to Constitutional rights, then are people who become citizens via statute — or legal residents who enter the country through statutory processes — also not entitled to Constitutional rights?

The question answers itself.

The question indeed answers itself: those people would be entitled to rights. For one thing, the protections of the First Amendment are not limited to citizens of this country. For another, citizenship is linked so inexorably with other facets of life that the government cannot require you to give up rights in order to obtain it.

It’s perhaps worth pointing out that corporations may be, and indeed are, formed under the laws of other states than those which constitute the United States. The argument that the United States may justify restricting the behaviour of a corporation formed under Mexican law, because that corporation owes its existence to United States law doesn’t quite work. Because the Mexican corporation obviously doesn’t owe its existence to United States law. Hence, if there is an argument at all connecting the corporation’s status under United States law, with its rights under United States law, it must be to do with state recognition, not state creation.

At this level, the difference between “state recognition” (in the sense of granting rights) and “state creation” is non-existant. The government can link regulation to the granting of privileges whether it is around at the original conception or a later point.

But since the doctrine of respondeat superior is just as much a creation of the state (in the form of the common-law courts) as is a corporation, it’s just a case of the state giving with one hand and taking away with the other.

I wouldn’t agree with your assertion that respondeat superior is a state creation. Unless you accept that all aspects of responsibility are just state creations, that is. The idea that we should be responsible for the actions of people we hire is about as basic as being responsible for things we do ourselves. And, from an American Constitutional standpoint, respondeat superior predates the Constitution from our common law and is thus not really a creation of the state: it came into the American system premade.

Lior: To me, speaking through a corporation is not merely a “manner” of speaking (time, place, and manner may be regulated more easily). Prohibiting people from pooling their resources together in order to send a more effective message is not the same as, say, prohibiting the use of megaphones in residential neighbourhoods. This is important since effective advertizing is expensive, often out of reach for all but the richest individuals.

I never advocated “prohibiting people from pooling their resources together in order to send a more effective message.” In fact, I pretty explicitly said that people do have the right to pool their resorces to speak. What I said is that they have no fundamental right to use the state-granted rights of corporations to do so. They can associate in any way they choose, but they cannot expect to get any protections from the state (such as limited liability).

Say, for instance, that people wanted to organize into groups that could not be sued at all by people outside of the group in order to speak. They would have no power to do that, even though there are indeed groups like that (states, under the 11th Amendment). The existence of a particular form of association does not automatically bestow upon people the right to use that form of association in order to advance political speech.

(I should note here that I’ve been focusing on limited liability because it’s the most obvious one for someone like me who’s relatively unversed in corporate law. There are, of course, many other legal benefits gained from the corporate form that people do not have the innate right to.)

Any TPM restrictions would have to apply equally to a billboard for toothpaste as they did for advertisements for a candidate for office. Otherwise it’s not TPM but content-based.

I’m not sure that’s true. Commercial and political advertisement are completely different fields, and thus can be dealt with legitimately as separate without raising content-discrimination concerns. It becomes content discrimination when they ban political advertisement for one position or another.

Dan: In reality, corporations are designed by law as pure profit-maximizing actors. They will “speak” whatever speech will give them profit. Regardless of the wishes of their “owners or employees.”
Your idea that “owners and employees” of corporations “speak” through the corporations acts simply ignores how corporations actually work.

That depends on their charter. They can be profit making or not profit. They can certainly put in the charter that no assets will be used for political speech. But if I invest in a corporation, I expect them to lobby for whatever they need to make money, and not let the government regulate away my investment.

To me, speaking through a corporation is not merely a “manner” of speaking (time, place, and manner may be regulated more easily).

It is most certainly a manner of speaking. The problem is that no one here that wants to regulate corporate speech wants to do so based on the manner but rather based on the content of that speech.

Any TPM restrictions would have to apply equally to a billboard for toothpaste as they did for advertisements for a candidate for office. Otherwise it’s not TPM but content-based.

If a corporation-owned, poorly maintained truck kills my children on a sidewalk, did I consent to limited liability that prevents me from holding those responsible for the harm fully accountable for their misconduct?

Just to add to Seamus’ very excellent response, you can recover against the corporation’s assets and income.

If anything, this makes it easier for your to collect than if you had to sue “those responsible” and establish each defendant’s individual responsibility. I’m not even sure how you would establish the responsibility of an owner for such an accident (“I was in Florida the entire time, I never spoke to the driver or maintenance guy in my life, that was all handled by the managers.” seems like a rather ironclad defense.)

Finally (and perhaps most obviously) the government remove all tort liability from auto accidents. That would not a good policy, IMO, but I don’t think there is a constitutional right to it.

Whether or not Congress is correct in its evaluation of the dangers of corporate spending in elections is another debate, and one I’m not sure I would disagree with your (at least that heavily) on. However, Congress has the authority to do so unless the corporate form is necessary for the speech to be effective.

You have things exactly backwards. You believe Congress has the general authority to burden the ability to speak unless the limitations amount to a total ban (i.e. some necessary element speaking is eliminated). Instead, Congress generally cannot limit the freedom of speech except in unusual circumstances.

To me, speaking through a corporation is not merely a “manner” of speaking (time, place, and manner may be regulated more easily). Prohibiting people from pooling their resources together in order to send a more effective message is not the same as, say, prohibiting the use of megaphones in residential neighbourhoods. This is important since effective advertizing is expensive, often out of reach for all but the richest individuals.

This is especially so if you believe that certain groups people (the shareholders of a newspaper, the members of a labour union) do have the right the speak collectively through the corporation they formed, using their pooled resources.

If a corporation-owned, poorly maintained truck kills my children on a sidewalk, did I consent to limited liability that prevents me from holding those responsible for the harm fully accountable for their misconduct?

You have every right to sue the negligent driver who drove the truck, the negligent mechanic who maintained it poorly, the reckless supervisor who told the mechanic to stint on maintenance. The one thing that you can’t do is go after the owners of the corporation (as you might have gone after the owner of a sole proprietorship) under a theory of respondeat superior. But since the doctrine of respondeat superior is just as much a creation of the state (in the form of the common-law courts) as is a corporation, it’s just a case of the state giving with one hand and taking away with the other.

Why can’t states say that it’s OK to campaign, but one has to take off the limited liability shield first?

Would you object to a law that says that wading into political speech pierces the corporate veil and makes the corporation’s participants individually liable for any legal consequences of the activity?

After all, if corporations are just the people that make them up, one can’t exactly object to treating them legally as if they are exactly that, can one?

I know as a shareholder I’d opt-in to management exercising their discretion when (political or other) speech was necessary to protect our common interests – else I wouldn’t have contributed my capital to the firm. In other settings I’m not so sure. If I had to join a union and that union was politically active, it’s unlikely I’d opt in. The best answer is to get politics out of business, rather than business out of politics. Return to a simpler time of uniform, affecting-all citizens (and their enterprise) regulation. e.g. rather than emissions regulations “just” require the senior management and board of directors to live and educate their children close to their manufacturing plants, etc.

Remember that McCain was a victim of Keating getting politically involved because of government meddling that led to the Savings and Loan fiasco. If there were no expectations of government interference in an individual business sector, there would have been no scandal or straight-arrow McCain being embarrassed into writing foolish laws.

This simplistic formula ignores how corporations really work — in fact, their acts are required by law to maximize profits, regardless of the political opinions of their “owners or employees”.

Consider:
1. corporate boards owe shareholders a duty to manage the corporation according to their good faith judgment on how to give the shareholders the best return on their investment. Anything else subjects them to liability.
2. shareholders have very little power over corporate acts, except to elect board members.

Thus, corporate board members are not free to ‘speak’ through the corporation — in fact, to the extent that their speech might conflict with their duty to shareholders, they are completely muzzled in the corporate context. And shareholders can’t speak through the corporation either — they can only elect board members.

In reality, corporations are designed by law as pure profit-maximizing actors. They will “speak” whatever speech will give them profit. Regardless of the wishes of their “owners or employees.”

Your idea that “owners and employees” of corporations “speak” through the corporations acts simply ignores how corporations actually work.

ArthurKirkland:
If a corporation-owned, poorly maintained truck kills my children on a sidewalk, did I consent to limited liability that prevents me from holding those responsible for the harm fully accountable for their misconduct?A corporation insulates wrongdoers from accountability; it’s a heads-we-win, tails-you-lose arrangement.The losers sometimes consent (when contracting with a corporation) and sometimes do not (when observing their children crushed by a truck owned by a corporation that saved money by refraining from repairing brakes).Corporations benefit to society. But they also harm society.In general, corporate owners benefit at others’ expense.

So let me get this straight. You want to sue the driver of the truck or the mechanic who serviced it (both of whom will now be unemployed and unemployable and were probably dirt poor and stupid to begin with) instead of the general corporation itself, with deep pocket asset funds, a large insurance policy, etc?

Good luck finding a single plaintiffs attorney who will buy into your little theory of corporate invisibility. I mean I’m sure they are just chomping at the bit to spend all that time and litigation expense to get chance to slap a lien on Larry the Lazy Mechanic’s $30,000 trailer home and his beat-up Camaro before the bank forecloses on them.

The corporate form cuts both ways my friend.

Yeah because I feel so oppressed by corporations man…. *takes another bong hit*

I have not smoked marijuana for more than 20 years, largely because of the anti-freedom efforts of nanny-state conservatives and liberty-hating Republicans (some of whom are dumb enough to call themselves libertarians).

Other than that, your advocacy is remarkable.

If you define “state-created entity” narrowly, then it won’t include most corporations. But if you define it broadly as any legally defined status that carries government-granted rights or privileges, then pretty much every important private organization is a state-created entity. Individual citizens may be “state-created entities” as well, and naturalized citizens certainly are. Going down this road would destroy constitutional rights for just about everyone.

…and thus, you’ve demolished the distinction between “public sector” and “private sector,” and invalidated most strict laissez-faire arguments.

I guess we really are all socialists now. Well done.