Based on the oral argument in the Citizens United case (which I previewed here and which is summarized nicely here), it appears that the Supreme Court is likely to overrule the precedents establishing governmental authority to regulate political speech by corporations. If so, under the Buckley v. Valeo framework, it will still be possible to limit corporate campaign contributions in the same way that individual campaign contributions can be subject to reasonable limits, but there will be no more limiting independent expenditures of general corporate treasury funds.
Perhaps the most interesting suggestion during the oral argument came from the Court's newest member. Justice Sotomayor mused that maybe the real problem is rooted in the old decisions finding that corporations have constitutional rights. (Justice Ginsburg gestured in the same direction.) Although I'm sympathetic to the goal of upholding campaign finance regulation, I think there's no realistic chance that such precedents will be re-examined.
Nor is it even clear that they should be. A corporation is an artificial entity, it is true, but so are all sorts of other organizations, including the ACLU, the NAACP, the NRA, etc., each of which pretty clearly needs to have some constitutional rights in order to protect the rights of its members. So artificiality per se is not a basis for denying (all) constitutional protections. And if the problem is that corporations are often in the business of earning profits, that point is both over and under-inclusive. Corporations can be organized as non-profits, while natural persons as sole proprietors or in partnerships can be in business.
Accordingly, the problem does not seem to be the attribution of rights to corporations as such. There are, instead, two main reasons to treat very large corporations differently when it comes to free speech. First, some of them amass such large fortunes that they can then use to swamp other voices. And second, the corporations then may end up using corporate funds in ways that do not reflect the political views of shareholders. I think it extremely unlikely that the Supreme Court will credit the first ground. As Justice Kennedy apparently noted during the oral argument, this rationale does seem inconsistent with the following maxim fromBuckley: "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
CJ Roberts expressed skepticism of the second argument, but even if it fails before the SCOTUS (which it probably will), it may suggest a partial way around the Court's ruling, namely corporate governance. Absent anything to the contrary in the corporate charter or by-laws, courts will typically uphold, as within the purview of management, decisions to spend corporate treasury funds on political speech. But nothing in corporate law--or the First Amendment--prevents the inclusion in corporate governing documents of something like the following: "General treasury funds shall not be used to fund political campaigns aimed at electing or defeating candidates or ballot initiatives."
In principle, shareholders might want such a provision. After all, money spent on political speech is money diverted from corporate capital (and thus share price) or dividends. However, corporate governance makes it hard for shareholders to organize and furthermore, there is a competing mechanism: Most political speech by corporations will be aimed at electing candidates or promoting platforms that benefit the corporation. The reason we worry about corporate political speech is not so much that we fear that Microsoft will try to elect pro-choice or pro-life candidates but that we fear that Microsoft will try to elect candidates who favor weak antitrust enforcement. So, even if corporate democracy were thriving, the incentives would not likely lead to my shareholder solution. So much the worse for democracy more broadly.
Posted by Mike Dorf