“A corporation, after all, is not endowed by its creator with inalienable rights.”
Those words were spoken by Justice Ruth Bader Ginsburg during arguments last week in the Citizens United campaign-finance case, but the real news (from the Wall Street Journal) is that Sonia Sotomayor in her inaugural appearance as a SCOTUS Justice also suggested by her comments during the arguments that she understands that corporations aren’t people.
I think the two lady Justices are right about this, and are right to challenge what the WSJ says is a century of corporate law. But I also think a distinction can and should be made between non-profit corporations like Citizens United and for-profit corporations, particularly when it comes to the First Amendment and political speech/financing. The WSJ article notes:
Originally, corporations were a relatively rare form of organization. The government granted charters to corporations, delineating their specific functions. Their powers were presumed limited to those their charter spelled out.
“A corporation is an artificial being, invisible, intangible,” Chief Justice John Marshall wrote in an 1819 case. “It possesses only those properties which the charter of its creation confers upon it.”
But as the Industrial Revolution took hold, corporations proliferated and views of their functions began to evolve.
Individuals legitimately use non-profit corporations to collectively advance their vision of the public interest, and political speech naturally falls within that purpose (presumably delineated expressly in the corporation’s charter). Freedom of association is implicated. On the other hand, political speech by a for-profit corporation to advance its for-profit special interests is much shadier and more tenuously related to the functions presumably delineated in its charter. As I indicated in comments to this post by Scott Greenfield about the Citizens United case:
[T]he purpose of for-profit corporations is to make a profit. Shareholders of for-profit corporations sign up to make a profit, while contributors to non-profit corporations sign up to further what they perceive to be in the public interest. . . . [S]ince corporations are creatures of the state and not natural persons I don’t see much wrong with the state putting significant limitations on the political speech of for-profit corporations. It could be argued that such political speech when made by a for-profit corporation is akin to commercial speech, and commercial speech traditionally has been afforded less protection under the First Amendment. . . . So long as Citizens United gets zero money from for-profit corporations, seems we’re as okay as we can be. Now if a wealthy individual or group of individuals whose interests happen to be aligned with this or that for-profit corporation contributes to Citizens United, there’s not much we can or should do about it consistent with the First Amendment.
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