Via a Scotusblog's round-up of articles, here's an interesting argument concerning "The Lack of Stockholder Voluntariness in Corporate Political Speech."
Via one of the links (using the ideal footnote like tag function), we do find an alternative concern, the author of which underlines an alternative libertarian view. The dissent also cites an earlier case where the Court's liberals took such a view. The two justices that joined in the dissent here are notable for two reasons. (1) Both were politicians from the populist tradition so had a realistic understanding of how these things work with Black's anti-corporate bona fides well documented (an early dissent challenged giving corporations standing as constitutional persons). (2) CJ Warren was no First Amendment absolutist like the other two, so that is not the reason he joined in. Anyway, the dissent started thusly:
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK join, dissenting.
We deal here with a problem that is fundamental to the electoral process and to the operation of our democratic society. It is whether a union can express its views on the issues of an election and on the merits of the candidates, unrestrained and unfettered by the Congress. The principle at stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail and wholesale trade groups, consumers' leagues, farmers' unions, religious groups, and every other association representing a segment of American life and taking an active part in our political campaigns and discussions. It is as important an issue as has come before the Court, for it reaches the very vitals of our system of government.
Under our Constitution, it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important -- vitally important -- that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.
Unions and corporations are put on the same level by the campaign finance legislation is question in various respects. The two are different in various ways -- the investment of funds in corporations as a result of decisions not really of your control, e.g., raises questions unlike membership in a union. So, even if this seems like a good way to balance the concerns of both political parties by burdening groups one or the other support more, putting the two in the same boat is questionable. Still, the dissent noted:
Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group -- labor or corporate.
With cause, since any number of corporate group came in front of the Court, including to defend the rights of some group or the other. This is why the Supreme Court has treated non-profits somewhat differently (how much is unclear, since it gets all so complicated) in this area. But, we keep on hearing about the problems of "corporations" as if it is a one size fits all matter. That's absurd. I can incorporate JP Inc., for instance, which basically would mean the liability of its actions will be limited to the funds of the corporation. My right to speak in promotion of its interests does not suddenly plummet because I incorporated. This is true even if it decreases by some degree given incorporation brings with it various obligations.
The dissent provides this footnote that still holds true:
If Congress is of the opinion that large contributions by labor unions to candidates for office and to political parties have had an undue influence upon the conduct of elections, it can prohibit such contributions. And, in expressing their views on the issues and candidates, labor unions can be required to acknowledge their authorship and support of those expressions. Undue influence, however, cannot constitutionally form the basis for making it unlawful for any segment of our society to express its views on the issues of a political campaign.
Contributions to candidates and disclosure laws are put in a different category than expression of views. This includes limits on what corporations can pay to create ads, literature or downloadable content sometime close to elections, the time when voters would be most open to what they are saying. And, do so without some Rube Goldberg device with the clear intent of making it harder for them to speak out.* What about the fear that shareholders would disagree? I don't quite understand that. When I give money to some big group, let's say one that promotes animal welfare, I delegate to them how the money will be spent. I might disagree with what they do in any number of ways, but have little real control over such matters.
So it is with corporations, which makes any number of company related decisions, in some cases ones that I might find very distasteful. Some corporations are subject to human rights litigation for their acts overseas. Their shareholders might be people who would not choose such a corporation to invest in, but had their money placed there by some retirement fund or whatever. So it goes. How is this a matter of corporate self-government, but suddenly when campaign finance decisions are in place, there is a sudden fear that shareholders might not have control? In this case, speech is involved, which if anything is something the government should have less power over. And, any number of political campaigns involve matters of utmost importance to a business, making it proper for them to speak out in various respects.
Again, any number of limits might be put in place, at least for the sake of argument. Corporations might be required to have heavier disclosure laws. If the matter at hand is merely ideological (Pepsi Inc. paying for an anti-abortion ad really is not business related) -- which probably has various line drawing problems -- things might also get more complicated. For profits might be more regulated in various ways than non-profits or there might be a cut-off so that small corporations are not treated the same as the big ones that everyone really care about. Limits of spending might be considered ala limits of campaign contributions in general. And so on.
But, and this was the sentiment of certain liberals back in the day too, heavy-handed limits on speech -- labor or corporate -- is a serious First Amendment problem. Shareholder protection or not.
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* I was watching Sen. Whitehouse talking about the pending case recently, concerned about the can of worms that would be opened if corporations could spend limitless money against various measures. Recall what we mean here: corporations cannot be trusted to have the right to talk about things. Their deep pocket owners and supporters might, perhaps with less disclosure on who is really behind such and such an ad campaign. How this is really helpful at the end of the day is unclear to me. Do astroturfs really need corporate spending to survive? Water finds an outlet. Control corporations ... sure ... but do so in a more effective way.
And, the concern underlines that the fact that corporations can form PACs is not really a saving grace here. The concern is that they are spending money generally, not that it is coming out of the general funds. I doubt many shareholders in general really care about the matter generally any way. In various cases, they would support spending if the company's business interests were at stake. Finally, even if they did, the fact that corporate supporters will get the message out another way will often upset them is a comparable fashion.
The whole concern has a phony feel to it.