What follows is not necessarily supported by current law, which in some respects has (erroneously, IMHO) conferred some sort of fictitious “personhood” on corporations. Rather, it’s an attempt to cut through legalisms to get to what’s really at the heart of the issues presented by Citizens United. I’d be interested in your thoughts.
Corporations don’t have vocal cords. They don’t have hands that can use a pen. They can’t type. They don’t have opinions. They don’t even have a physical existence. As Chief Justice Marshall observed long ago,
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 either expressly or as incidental to its very existence.
(By the way, the usually excellent Glenn Greenwald went way off the rails on this topic, aggressively defending the Citizens United decision. His fundamental error is where he says, almost in passing, “organized groups of people — which is what corporations are.” Wrong, Glenn. Read Chief Justice Marshall.)
As a result, there’s no need to include or exclude corporations specifically in the First Amendment’s protection of the right to “speak,” because they are obviously not capable of exercising that right. One might as well argue about whether or not dogs should be included in or excluded from the First Amendment. Dogs have vocal cords, but they can’t “speak” either, at least not in a readily intelligible way. (Although I, like most dog owners, am aware that dogs are capable of making certain opinions known!) Are dogs entitled to First Amendment protection? It doesn’t matter, because dogs can’t “speak.” Same with corporations. If anything, the case is better for dogs, who at least have opinions and can make noise expressing them.
This understanding of corporate inability to speak, by the way, has a historical pedigree that dates back to the time of the founding. Justice Stevens helpfully gathered the following citations in footnote 55 of his Citizens United dissent (which is excellent and well worth reading in its entirety):
In normal usage then [when the First Amendment was ratified], as now, the term “speech” referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853-1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of “speech”: “The power of articulate utterance; the power of expressing thoughts by vocal words”); 2 N. Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of “speech”: “The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest purposes”). Indeed, it has been “claimed that the notion of institutional speech … did not exist in post-revolutionary America.” Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) (“In the intellectual heritage of the eighteenth century, the idea that free speech was individual and personal was deeply rooted and clearly manifest in the writings of Locke, Milton, and others on whom the framers of the Constitution and the Bill of Rights drew”). Given that corporations were conceived of as artificial entities and do not have the technical capacity to “speak,” the burden of establishing that the Framers and ratifiers understood “the freedom of speech” to encompass corporate speech is, I believe, far heavier than the majority acknowledges.
Of course, corporations can purchase advertising that conveys a message. But now you’ve added people into the mix. You’ve got people deciding to create the ad; you’ve got people deciding what the ad should say; you’ve got people writing the ad copy and doing the voice-over; you’ve got people determining how much money from the corporate treasury should be used to run the ad. And this is true whether we’re talking about political advertising or about ordinary commercial advertising.
For present purposes, the point about the treasury is the critical one. Corporations are entities that receive a variety of state-sponsored legal advantages in order to help them amass large amounts of money in their corporate treasuries. (The reason for doing so is presumably that, by amassing wealth in this way, corporations supposedly help the economy, create jobs, etc. – whether or not that’s true is a topic for another day. Let’s assume it’s true.) So, when a corporation buys an ad, it does so because the people who run the corporation have decided to direct some of that (essentially) state-subsidized wealth toward an ad purchase.
So, does that mean the corporation is speaking? No, of course not. As we’ve already established, corporations can’t speak. What’s happening is that people who hold certain positions of responsibility within the corporation are speaking, and their speech is facilitated and amplified through the use of corporate money. The amount of money spent determines the level of amplification — it can run from the small amount needed to hang a poster on the wall outside corporate headquarters to the much larger amount needed to run ads during the Super Bowl. But regardless of the form the speech takes, the result is the same: it is people speaking, and their speech is amplified through the use of corporate funds.
Which brings us to what’s really at issue in Citizens United: how far does the right to amplify speech extend? It seems to me easy enough to say that people can use their personal wealth to amplify their speech pretty much as loud as they want. It’s their money, after all, and if some gajillionaire wants to take out ads saying “Vote for Joe,” why shouldn’t we let him do so? If the First Amendment protects my walking down to Kinko’s and copying a bunch of fliers saying “Vote for Joe” that I then hand out on a street corner, what’s so different about the gajillionaire buying TV ads?
But here, we are not talking about people using their personal wealth. We are talking about people using wealth that was created by virtue of the state-sponsored corporate form, and over which corporate rules and regulations give them control. Simply put, it’s not their money, and there’s no particular reason that people who run corporations should have a constitutional right to use someone else’s money to amplify their own speech. It seems to me that, barring some law to the contrary, corporate money could be used in this way — after all, state law empowers a corporation “to do all things necessary or convenient to carry out its business and affairs,” and it might well be “convenient” for XYZ Corp. that Joe rather than Jane be elected. But I cannot see why the Constitution should require that corporate money be available for political advertising, since again, we are not (and cannot be) talking about the corporation’s “speech.” If the states, or the federal government, wish to qualify the “all things necessary or convenient” language in corporate statutes to exclude paying for political advertising, it seems to me not at all constitutionally problematic for them to do so. After all, to return to Chief Justice Marshall’s words, “being the mere creature of law, [a corporation] possesses only those properties which the c
harter of its creation confers upon it either expressly or as incidental to its very existence.”
So, to sum up: corporations, like dogs, don’t “speak.” People speak. People get to spend their own money to amplify their speech, but they don’t necessarily get to spend someone else’s. It seems to follow that there shouldn’t be a constitutional right for people to use the money in a corporate account that they don’t own to amplify their own speech.
What am I missing?