Some on this site would, I assume, say that the answer is yes, of course that’s right.
I’m not a strong supporter of commercial speech rights…. But I hold that view whether the speaker is a natural person or a juridical person such as a corporation. It is the subject matter of the speech, not the status of the speaker, that matters to me.
Since we’re talking here about core political speech, which receives the highest degree of First Amendment protection, this view says that it doesn’t matter whose speech it is. The subject matter is protected; ergo, restricting it is unconstitutional.
But it’s actually not that simple, is it? After all, we already draw distinctions among natural persons on the extent to which they may spend money on elections. The most obvious example is citizenship: if you are not a US citizen or green card holder, you may not donate to a federal campaign, nor may you make “independent expenditures.” Why? Presumably, because we think it’s appropriate either (a) that, to the extent that candidates feel “beholden” or “obligated” to their donors, those donors should only be US citizens and permanent residents; or (b) that foreign citizens have very limited influence over American elections; or both. Seems to me that both (a) and (b) reflect a sense that, basically, American elections are for American people, and while we cannot eliminate the influence of foreigners over American elections, we can go quite far in limiting it. And, clearly, there’s more to it than just “the subject matter of the speech” — after all, the exact same ad is legal if paid for by an American, but illegal if paid for by a foreigner. In that case, at least, “the status of the speaker” does matter.
So where do corporations fit? And specifically, are corporations more like the “natural persons” who, as American citizens, have the full panoply of rights afforded such citizens, such that they can spend all they want persuading people to vote a particular way? Or do they more closely resemble a foreign national, perhaps one residing in the U.S., who receives some of the benefits of living here, including certain legal and constitutional rights, but who doesn’t get all the benefits that citizens do?
The question, in other words, is not so much whether corporations should be treated like people, but rather, which category of people do they most closely resemble?
On the one hand, some corporations are “Americans” — they are incorporated here, and they do all or most of their business here. On the other hand, of course, some corporations — especially the very large ones who are likely to be the big players in campaign spending — may be incorporated here, but they do a lot of their business elsewhere; a lot of their income may come from non-Americans; they may shelter a lot of their assets elsewhere; a majority of their stock may even be owned by foreigners. But no corporation can vote. Rich Americans also pursue tax avoidance strategies, and may make a lot of money overseas. But as long as they retain their citizenship, they still get to vote, and that seems to me to be the dividing line that we already draw between natural people who get to try to influence federal elections and natural people who don’t.
Is there a persuasive argument the other way — that corporations should get more rights to participate in federal elections than natural persons who happen to be foreign nationals? Or is there actually something to this notion that, as a non-voting “person,” it is permissible to restrict or ban a corporation from spending its money to influence a federal election?
