Can Corporations Vote Now?
El GREGGO
Election Commission, the U.S. Supreme Court tossed out years of
campaign finance law by ruling that corporations and labor unions have
the same First Amendment freedom of speech rights as individuals in
using their funds to support or oppose candidates for election. In his
dissenting opinion, Justice John Paul Stevens raised an interesting,
if somewhat sarcastic question: does this mean corporations can vote
now?
"Under the majority's view, I suppose it may be a First Amendment
problem that corporations are not permitted to vote, given that voting
is, among other things, a form of speech," wrote Justice Stevens.
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COMMENT:
Supreme Court Justice John Paul Stevens may have had his tongue in his
cheek, or perhaps wanted merely to taunt the majority, when he wrote
in Thursday’s opinion on the role of corporations in national
politics: “Under the majority’s view, I suppose it may be a First
Amendment problem that corporations are not permitted to vote, given
that voting is, among other things, a form of speech.” It is a
tantalizing notion.
Suppose that General Motors Corp., troubled that a candidate for
Congress from Michigan was too favorable to the United Auto Workers,
decided to do everything in its corporate power to defeat that
candidate. So, aside from spending huge sums of its own money (none
of it federal bailout money) to influence the outcome, it went to the
office of the voting registrar in downtown Detroit. It sought to sign
up, affirming that it was a citizen and resident of Michigan. Denied
registration, it sued, claiming that, under the Fourteenth Amendment
of the U.S. Constitution, it was a “person,” and, as a “citizen,” it
was entitled to equal protection under the election laws. Would the
Supreme Court buy that?
General Motors might already be halfway to winning its lawsuit. It
has been understood, for decades, that corporations are “persons”
under the Constitution. And nothing the Supreme Court said Thursday
undermined that notion. If anything, the decision in Citizens United
v. Federal Election Commission conferred new dignity on corporate
“persons,” treating them — under the First Amendment free-speech
clause — as the equal of human beings.
At least in politics, the Court majority indicated, corporations have
a voice, and they have worthy political ideas. Here is the way
Justice Anthony M. Kennedy put it (partially quoting from an earlier
ruling): “Corporations and other associations, like individuals,
contribute to the ‘discussion, debate, and the dissemination of
information and ideas’ that the First Amendment seeks to foster.”
It does not matter that the right-to-vote scenario is quite
implausible. The fact is that the decades-old image of American
corporations as a destabilizing and perhaps even corrupting influence
in politics has now been thoroughly re-examined by the Supreme Court,
and the corporate “person” emerges from the process with — in the eyes
of the majority — a burnished image of good citizen. There is a deep
chasm of perception, between Thursday’s majority and the dissenters,
about the nature of the corporate personality.
Justice Stevens, writing for the dissenters, turned Chief Justice John
Marshall’s celebrated comment in the Dartmouth College case — in a
ruling that actually favored the corporate form — into a belittling
comment: “A corporation is an artificial being, invisible, intangible,
and existing only in contemplation of law. Being the mere creature of
law, it possesses only those properties which the charter of its
creation confers upon it.”
In vivid contrast, the majority overruled a 19-year-old precedent
(Austin v. Michigan Chamber of Commerce) that had lambasted the
corporation, when it entered the political arena, because of ”the
corrosive and distorting effects of immense aggregations of wealth
that are accumulated with the help of the corporate form and that have
little or no correlation to the public’s support for the corporation’s
political ideas.” That, the Court had said in 1990, was a form of
corruption that legislators could use as the basis for singling out
corporations for restrictions on their political activity. The
overruling may have been intended, in part, to scuttle that image.
The rehabilitation of the corporate “person” almost certainly was a
project that five of the Justices were prepared to embrace. It could
be argued, indeed, that the Court put the case over to the current
Term for a second argument, focused on corporation’s rights under the
Constitution, as part of that project. There was not a hint that
those five, in the end, were in any way moved by the suggestion at
that second argument by Justice Sonia Sotomayor that the Court may
have been wrong for a century about awarding “personhood” to
corporations.
The majority put aside the dissenting opinion’s repeated mentions of
the special favors that the corporate form gets, treating those as a
completely inadequate foundation for treating corporations differently
as political citizens. And Justice Antonin Scalia, in a separate
opinion buttressing the majority ruling, went to considerable lengths
to enhance the constitutional pedigree of corporations’ rights and to
denounce the dissenters’ suggestion that the Founders did not think
highly of corporations.
The question now arises whether the enhanced legal stature of
corporations will make a difference in other fields of constitutional
law. One might suggest that corporations have already benefited from
greater sympathy from the current Court — for example, in
constitutional limitations on the size of punitive damages that juries
may assess for corporate wrongdoing. And, this Term, there seems to
be quite a realistic prospect that the Court, applying the Due Process
Clause, may limit the scope of the federal criminal fraud laws when an
executive of a corporation is accused of depriving the shareholders of
“honest services.”
Going further, one might speculate whether it would be worth starting
a lawsuit to test some of the restraints that states impose on
corporations as conditions in their charters, in an effort to further
liberate the corporate form. Or, perhaps, one might anticipate a
lawsuit if, as is already being suggested in some quarters, that
Congress might respond to the Citizens United ruling by passing a law
to require corporations operating in interstate commerce to be
federally chartered, and decreeing that, as such, they are not
“persons” with constitutional rights.
It is not too much to expect that lawyers for corporate America may
well be looking to explore the outer possibilities of their clients’
“personhood” and new-found constitutional equality.
EL GREGGO
The eccentric oenophile, who's in love
by being in love...
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