Last week I posted the abstract of my latest paper, The Silent Role of Corporate Theory in the Supreme Court’s Campaign Finance Cases (you can find the abstract and download the paper here).  I mentioned that I might engage in some “open source article writing,” since the paper is still subject to further revision and there are parts of it that I think would be of interest to our readers and that I’d love to get additional feedback on.  This week I’d like to focus on my argument that understanding Citizens United to be about the rights of listeners does not preclude finding an important role for corporate theory in the decision.  The following is from my introduction:

In Citizens United v. Federal Election Commission, a 5-4 majority of the Supreme Court ruled that corporate political speech could not be regulated on the basis of corporate status alone.   Given that there is a great deal of debate about what corporations are (they have to date eluded capture), one would think that the Court would have needed to answer that question first before reaching its conclusion.  However, the majority was silent on this issue and the dissent went so far as to expressly disavow any role for corporate theory at all.   Instead, the opinion appeared to rest on a “listeners’ rights” analysis.   It remains unclear, however, how focusing on listeners’ rights could eliminate all need to examine the nature of corporations.  For example, how would one know whether corporations fit within the well-established line of identity-based exception cases under the First Amendment without addressing the unique aspects of corporate identity?

The majority in Citizens United (at page 899 of the opinion) referenced the status-based exception cases as follows:

The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., … Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973) …. The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite.

The citation of the Letter Carriers case is of particular interest because after Citizens United it is apparently permissible under the First Amendment for the government to prohibit live human beings who happen to be federal employees “from taking ‘an active part in political management or in political campaigns,’” 413 U.S. at 595, 597 (Douglas, J., dissenting) (“We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble.”), but the government may not similarly restrict the First Amendment rights of state-created artificial entities that have been granted unique attributes greatly amplifying their ability to concentrate wealth and thereby influence elections.

Justice Stevens’s response in dissent captures quite nicely why the question of what corporations are (and what sorts of threats they pose) remains relevant.  Justice Stevens notes (at 946, n.46) that:

The majority states that the [status-based exception cases] are “inapposite” because they “stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech.” The majority's creative suggestion that these cases stand only for that one proposition is quite implausible. In any event, the proposition lies at the heart of this case, as Congress and half the state legislatures have concluded, over many decades, that their core functions of administering elections and passing legislation cannot operate effectively without some narrow restrictions on corporate electioneering paid for by general treasury funds.

Thus, even putting aside for the moment the fact that listeners’ rights are not absolute as a general matter, the nature of the speaker remains relevant in any case because of the possibility that the speech of the particular class at issue implicates the protectable “interest in allowing governmental entities to perform their functions.”