Musings on Citizens United

Earlier this semester we here at Brown had a lecture/debate/not-really-much-of-a-debate about the Supreme Court decision Citizens United v. FEC, the case that struck down prohibitions on corporate electioneering. As I said, it wasn't much of a debate; Larry Lessig, the nominally pro-campaign finance restrictions speaker, stated explicitly that he agreed with the Court. And the general consensus of the speakers, including Lessig, his opponent Bradley Smith, and Professor Steven Calabresi, who led an unpacking discussion a few days later, was that the Court had been right, corporations have a full complement of rights including free speech rights, and that the solution to speech is not to silence that speech but rather to talk back. And at the time, I was at least borderline convinced by that argument. (Professor Calabresi also argued that one good solution would be a robust anonymity regime, and while the anonymous spending of the elections seems to argue against that proposal even in theory, I might point out that these donations/ads weren't anonymous to the politicians; that would be the key point.)

But I had a thought today that, I think, shows why the argument is an incorrect one. I, along with some others, asked the question, "If the government creates corporations, why is it required to give them free speech rights?" That is to say, since corporations exist only on the whims of the government, can they really be said to have rights against it? The response was, look, we give corporations other Bill of Rights rights, like 4th Amendment protections against unreasonable searches and seizures. But there's a big difference.

What is a corporation? It is a creature of property. It is an agglomeration of property, a web of contracts given legal force by the government which has been found convenient to picture as a kind of legal person. But it is fundamentally property. It is not a sentient being. It cannot be said to have natural rights of the Lockian variety, if you're partial to Lockian natural rights, since, in the Lockian state of nature, no corporation would exist in any binding sense. So why do corporations have 4th Amendment rights? Because those are rights pertaining to property, and property is what corporations are all about. There would be no point in creating a corporation if you didn't give it property rights, so when the government creates a corporation, assuming it is a reasonable and/or competent government, it will of course grant them property rights. If it doesn't have property rights, it can't bloody well be a creature of property, can it?

But the right to freedom of speech, and especially the right to political speech, is not a property right. Freedom of expression, as in the right to make art or publish a book or have public discussions about ideas, could be argued to be a natural right; again, corporations cannot have natural rights, since they are not natural persons. What freedom of speech rights are, and again, what political speech rights especially are, is political rights. They fall in that great category of rights we ensure because they are a part of the democratic political process. The most basic point of free speech rights is to allow citizens (!) to participate in their own self-governance.

And a corporation does not, or should not, have political rights. They cannot vote. They do not count in apportionment. They may not run for nor hold office. And they should not have these rights. Why? They are not a party to the social contract. The great principle of democracy is that all human beings who live under the jurisdiction of a government should be able to participate in the administration of that government. The people all make an agreement with one another to waive some portion of their natural rights, and in exchange they get a government that can better protect their other natural rights, and that they get to participate in. That's Locke's logic, and since the Declaration of Independence is almost plagiarized from Locke I think it's a reasonable basis to go on in evaluating our government. And corporations play no part in this process. They do not exist when the social contract is made; they have no right to participate in the government formed by that social contract. And one of the most important ways to participate is by speaking.

A corporation is not a political being, it is a propertied being. It is no party to the sovereignty of the government, it has no right to participate in the government. As such, the claim that corporations have, or must have, freedom of political speech is ludicrous.