It's been five days since Citizens United came down, and you could make a full-time job of following the written fallout. A common theme is that the vice of the majority opinion, maybe even of life generally in these United States, is that corporations have rights. Some exponents of this school seem to have only now discovered the idea of corporate personhood, and they don’t like it. Corporations aren’t people! This leads to proposed Constitutional Amendments like this:
SECTION 1. The U.S. Constitution protects only the rights of living human beings.
SECTION 2. Corporations and other institutions granted the privilege to exist shall be subordinate to any and all laws enacted by citizens and their elected governments.
SECTION 3. Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.
People! It's OK to get mad, but trust us, you do not want that Amendment. As certain people's dads used to say, it's like using a steamroller to crack a walnut.
A long line of Supreme Court rulings, going back to the early 19th century, confers on corporations many of the rights granted to persons under the Constitution. For example, the government can't break into a corporation's office and search for evidence without a warrant (4th Amendment). Corporations are entitled to trial by jury in criminal matters (7th Amendment). Corporations cannot be subjected to double jeopardy (5th Amendment). The Government can't seize corporate property without due process or just compensation (5th and 14th Amendments). Contracts entered into by corporations are protected by the contracts clause of Article I, Section 10. There is not serious debate about these settled principles. We want things this way.
In fact, it is settled that speech out of the, er, mouths of corporations is protected by the First Amendment, as Justice Stevens points out (look at it this way: should Congress be able to prohibit any corporation—including a nonprofit advocacy group—from criticizing American wars?). It is the Kennedy majority who treats the point as unsettled. For Justice Stevens, the issue is not whether corporations have rights under the Constitution, but how to square First Amendment protections for corporate speech with the core purposes of the First Amendment for We The People.
There's no better way to get that across than to quote from Stevens directly and liberally (emphasis added):
The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it.... It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their "personhood" often serves as a useful legal fiction. But they are not themselves members of "We the People" by whom and for whom our Constitution was established...
More from Stevens after the jump.
These basic points help explain why corporate electioneering is not only more likely to impair compelling governmental interests, but also why restrictions on that electioneering are less likely to encroach upon First Amendment freedoms. One fundamental concern of the First Amendment is to "protec[t] the individual's interest in self-expression."….
It is an interesting question "who" is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful. It is entirely possible that the corporation's electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one's autonomy, dignity, or political equality has been impinged upon in the least....
None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns or in any other public forum…or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is...a concern to facilitate First Amendment values by preserving some breathing room around the electoral "marketplace," the marketplace in which the actual people of this Nation determine how they will govern themselves. The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other….
It would be perfectly understandable if our colleagues feared that a campaign finance regulation such as §203 may be counterproductive or self-interested, and therefore attended carefully to the choices the Legislature has made. But the majority does not bother to consider such practical matters, or even to consult a record; it simply stipulates that "enlightened self-government" can arise only in the absence of regulation….In light of the distinctive features of corporations identified in Austin, there is no valid basis for this assumption. The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold….The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve.
So if that proposed amendment we began with above is no good, what would a good amendment be? Next up: We'll write our own.