Citizens United? A Fine Challenge, Sir. A Fine Challenge.
Ken @ Popehat, whose fantastic article on prosecutorial misconduct I’ve linked to previously, has thrown down the gauntlet on Citizens United. His post is too long to quote in its entirety, but he makes some rather solid arguments in defense of the Citizens United ruling, which I’ll try to justly represent here:
You might have noticed that Popehat blacked out yesterday to join the protest against SOPA/PIPA. (The technical aspect of that effort was all David’s work; if I had tried it … well, suffice it to say all these posts might have been lost, like tears in rain, etc.) The widespread protest seemed to succeed at its aim of raising awareness and led to defections from the ranks of SOPA/PIPA supporters.
All of that seemingly effective advocacy raises a question: did its participants have a First Amendment right to protest that way?
If you think that Citizens United was wrong — if you think that corporations shouldn’t have First Amendment rights — then why, exactly, can’t the government punish Wikimedia Foundation or Google or any other non-human entity for speech that offended its favored lobbyist and contributor, the MPAA?
(Note that I’m addressing people who say corporations have no First Amendment rights, not people who saycampaign donation restrictions do not violate the First Amendment because money is not speech, which is an entirely different ranty post.)
[Now] you might say, “they can’t do that, because you have First Amendment rights, and those corporations are just the vehicles through which you are exercising those rights.” To which I say: exactly. That’s what entities are — vehicles through which people do things. Sometimes they are objectionable things, sometimes they are stupid things, soometimes they are things that, if accepted, would lead to deplorable results. But entities — corporations — are vehicles for human activity, including expression.
So. Advocates of the “corporations have no First Amendment rights” position: why can’t the government punish the corporations that blacked out yesterday?
Well I think, first off, there’s actually a very straight-forward answer to this question: Corporations are creatures of statute. They quite literally exist at the will of the government. People don’t; they exist regardless of whether government exists (although history shows the tend to form them for one reason or another). Any government could decide tomorrow to abolish the corporate form, and corporations, as we know them, would cease to exist. They would have no right to sue or be sued in Court as an entity, no right to hold property as an entity, no right to, well, anything. Any and all rights given to a Corporation exist at the pleasure of the government statute which creates them. To borrow Justice Rehnquist’s phrase: "The Corporate form is an artificial creature of the law, not an individual."
People, however, are not created in a legislature. They exist because their parents had relations, as opposed to an act of law which creates the corporate form. Put another way, people exist because mom and dad got some action, rather than by legislative action; baby-making, not law-making.
To me, that’s an important distinction: Corporations are literally created out of thin air. They are nothing more than a collection of legal conventions which serve as a convenient means to organize a productive enterprise. Put bluntly: You and I do not have a constitutional right to form a corporation. What even constitutes a corporation differs from state to state. The same cannot be said with respect to a human being (abortion notwithstanding, which is of course irrelevant for the current purpose). The rights of human citizens in America exist by virtue of Constitutional enumeration, and some would argue by virtue of endowment from “their Creator,” if one believes in God. Moreover, virtually every constitutional right other than speech that exists for a person does not exist for a corporation. Corporations cannot vote. They cannot marry. They can own property as an entity only to the extent allowed by statute. And as Del. GCL 102(b)(7) and its progeny has clearly taught us, Corporations can only sue or be sued to the extent allowed by statute. Their rights simply do not come from the Constitution. They come from the legislature. The Life, Liberty and Property of a Corporation exist by legislative grace. The same is not true for a human being.
As I see it, the problem with ascribing Constitutional rights to the corporate form is that you’re dealing with a form of centralized power. In fact, when you deal with the corporate form, you are actually dealing indirectly with the government, because the corporate form’s characteristics are based 100% on the whims of the legislature which creates them. This, of course, creates the potential for massive abuse. Consider the fact that at common law and in virtually ever state code, corporate officers have a fiduciary duty to act in the best interests of the corporation. A corporation which has an unrestricted 1st Amendment right to petition and lobby the government is a corporation which will always pursue what is in its own best interest, possibly (and in my experience, often) to the detriment of society at large. The speech of the corporate actor is tainted by a legal duty to pursue policies that are in the best interest of the corporation. It is the government who creates that legal burden. Granting corporations a 1st Amendment right to free speech creates a rather vicious feedback loop, in which corporate actors have a duty to act in the best interest of their corporation, and then they are given unrestricted purview to use corporate resources to influence the distribution of public goods in a way that benefits them. Recall also that shareholders have little say in the day-to-day operation of a publicly-traded company. So to the extent that a corporation represents the collective voices of the people who own it, the corporate form is generally not an effective place for them to get their voices heard by the political system.
All of these concerns are probably the reason why Thomas Jefferson, no fan of big government, was nonetheless equally concerned about the aggregated power of corporations in America, even before they became a common form of business organization, when he spoke ill of them in his letter to George Logan in 1816:
We may sometimes have mistaken our rights, or made an erroneous estimate of the actions of others, but no voluntary wrong can be imputed to us. In this respect England exhibits the most remarkable phaenomenon in the universe in the contrast between the profligacy of it’s government and the probity of it’s citizens. And accordingly it is now exhibiting an example of the truth of the maxim that virtue & interest are inseparable. It ends, as might have been expected, in the ruin of it’s people, but this ruin will fall heaviest, as it ought to fall on that hereditary aristocracy which has for generations been preparing the catastrophe. I hope we shall take warning from the example and crush in it’s birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.
The only way to “crush” Jefferson’s corporate aristocracy is to place meaningful limits on the scope of their activity. Granting corporations the same 1st Amendment rights that we grant to individuals makes that virtually impossible when it comes to getting the money out of politics, something that is necessary if we ever want to break out of the banal 2-party circle-jerk that America’s political landscape has been stuck in since time immemorial.
So the answer to Ken’s question, in so many words, is basically yes: the government theoretically could punish corporations for participating in the SOPA/PIPA black-out. For example: what provision of the Constitution would prevent any legislature from abolishing the corporate form tomorrow? They could do so for any reason, for no reason if they so chose. The government could literally abrogate the corporate form tomorrow, and there’s no constitutional provision that would save them.
On the other hand, the government (in theory, anyway) can’t kill a human being for no reason. The Constitution (in theory) forbids it. Granted, I understand that we now live in the world of Due-process free assassination, indefinite detention, and pretty soon, if we’re lucky, flexible citizenship. But not a single one of these issues spins on whether corporations are given 1st Amendment rights. The government can’t assassinate Google with a Drone Missile. They can’t throw Wikimedia in Guantanamo Bay. And the citizenship of those organizations only exists for purposes of determining where they can be sued, and what body of law to apply when they appear in court. Google can’t apply for food stamps in California, or receive Social Security when it turns 65.
Whether it would be wise or even desirable for the government to punish corporations for protesting SOPA/PIPA is obviously another question entirely. I of course would oppose it with the strength of five gorillas. I also think it’s relevant that the purpose of these protests was to demonstrate the impact of what would happen if these corporations, and the services they provide, went away. If the government actually did punish these companies for blacking out their services, the government would merely be proving their point.
When the gloriously wealthy, inhumanly prescient, and curiously sexually active mountebanks who wrote our Constitution set pen to paper, they did so on the assumption that people are endowed with rights by their Creator. If we work off that assumption, then the “Creator” of corporations is the legislature. That’s where their legal rights come from. The impressive aggregation of wealth and resources that occur under corporate organization results in a form of centralized power that can be used to the detriment of both individuals and smaller institutions who can’t afford to, say, pay a lobbying firm millions dollars, or make a SuperPAC for “Mom n’ Pop’s Fork n’ Spoon Repair.” An unrestricted corporate legal form creates the foundation for an “aristocracy of monied corporations,” in which the legal duties of corporate leadership create political conflicts of interest with society writ large. It makes sense to allow the government at least some leeway to place limits on the scope of the conduct which can be undertaken in the name of the corporation, inasmuch as it relates to influencing public resources. To use the language of Federal standing: corporate influence in public policy is a political question, which should be left to democratic institutions to deal with.
Of course, the government isn’t going to punish Google, or Wikimedia, or any other company for participating in the blackout. Why? Well if you subscribe to public choice theory, Google is something of a big deal when it comes to political contributions. And with respect to smaller companies like Wikimedia, imagine what would happen if Wikipedia shut down for good. The panic on the web over just 24 hours was palpable. If you want to see a bi-partisan coalition of voters come together quicker than you’ve ever witnessed, watch what happens if the government takes Wikipedia off the web. The parents of paper-writing students everywhere will be voting every stooge out of office who was responsible.