If corporations are only afforded business rights, what sort of organization could acquire freedom of speech? If a group of people would like to make a joint statement, do you think they should each have to sign the document? Do governments have the right to say what they like, or would every citizen have to sign each law, treaty, and declaration of war?
Just because a corporation does not have rights of free speech under the 1st amendment does not mean that all of its speech rights should be destroyed. They can just be controlled in some ways for the public good as allowed by law.
Thus, an organization should have the right to speech and to voice its opinions, but those rights can be controlled for the public good, for example by laws that prohibit them spending too much money for campaigns or requiring them to identify themselves when buying TV ads.
And of course any organization can fall back on the first amendment rights of its members -- thus as you mentioned they can have all their members sign a document or have them all go to a demonstration, etc. I don't see anythign wrong with this system.
Just because a corporation does not have rights of free speech under the 1st amendment does not mean that all of its speech rights should be destroyed.
Yes, but the point is that they could be. The reason that rights are explicitly set out in the US Constitution is that governments, left to their own devices, tend to eventually find an excuse to take away any freedom they're not explicitly forbidden from taking away. This isn't because they're bad people, it's just because they're people.
In this case, I'd be very concerned about governments wanting to take away rights from corporations. Governments have always been uneasy about large corporations since Washington tends to dislike the idea of any power centers other than itself.
Giving governments the power to make laws restricting political donations is particularly dangerous, since the party in power is always going to try to twist these laws (always with the most noble-sounding stated intentions) to restrict the ability of the other party to get funding while protecting its own.
But Hugh, one might very well ask in that case why there is no constitutional provision for corporations.
Constitutional protections appear to be limited to citizens qua human persons; no protection is offered to institutions, even though powerful non-governmental institutions (churches) were well-established at the time of the United States' founding. being as how no special protections appear to be extended to any organizations other than the states, one might reasonably ask whether the founders ever intended for private organizations to have a distinct legal identity to begin with (as opposed to, say, a board of directors acting with common purpose but individual responsibility).
tl;dr if corporations enjoy constitutional protection, why aren't they mentioned in the constitution?
The whole point is that people are people, whereas their organizations are not them, nor are they free willed individuals on their own.
There's no need for an organization to be immune from censure or regulation when its constituents are all themselves immune.
If the government decides corporations shouldn't be able to pay for political advertising or host fund-raisers, then the corporation's constituents are free to speak out such measures, vote against them, run against the incumbent politicians, etc.
The rights of sovereign governments is a red herring. They have an implicit ability to do whatever they like, either because:they are democratically elected and their actions subject to review and reversal by their citizens' votes; or they rule by force and the will of their citizens is irrelevant.
This last bit, which you dismiss, is my point. Corporations have leaders which are elected, and their actions are subject to review by stakeholders. So why shouldn't they have similar rights?
It might be useful to separate "business rights" from "speech rights", but there should be a way for people to speak as a group. Class-action lawsuits, for example, allow a lot of people to be represented in court without personally being involved in the legal proceedings. Political institutions speak on behalf of significant chunks of the population on a regular basis.
And how would a corporation publish a prospectus without the right to speak? If prospectus contains lies, would you hold the individual who wrote it accountable? That defeats some of the protections a corporation provides, and means the stakeholders get a lot less money if they sue.
The problem, is that isn't true. In practice, save via a very expensive proxy fight, shareholders have almost no actual voice within most corporations.
Only the deeply cynical could hold that up as an analogue to democratic government and even they wouldn't say it was a positive state of affairs worth emulating.
there should be a way for people to speak as a group
There is. You just couldn't speak, as a group, through a shell entity that has its own inalienable right to free speech.
Not having freedom of speech equivalent to individuals doesn't imply a complete re-write of corporate law. It simply means that congress can (constitutionally) make laws abridging and regulating corporate speech.
No-one's proposing a change to how we handle corporate fraud and responsibility. I fail to see how the right to free political speech has any bearing on those areas.
An 'expensive proxy fight' is still cheaper than the campaigns required to reliably influence an elected government.
What's more, shareholders have many other options for influence. They can buy additional shares directly. They can 'exit' -- move their money elsewhere, empowering an alternate organization that does represent them.
In the comparison between shareholders and voters, it's not clear to me that it's shareholders who have less influence.
"And how would a corporation publish a prospectus without the right to speak?"
Bear in mind that the corporation is free to do anything that isn't prohibited. What we're talking about here is whether a corporation can avoid a legitimately-enacted regulation by claiming immunity based on a fundamental human right. Corporations can go right on publishing prospecti. And corporate officers are immune from liability (except in certain extreme cases of wrongdoing).
This will be the case as long as government (ie, we the people) decide it's in our best interests. If for some reason government (again, us) decide it's no longer in our best interest, then we can prohibit publishing a propectus without fear of violating some imaginary entity's rights. We can already prohibit the formation of corporations entirely (ie, withdraw the privilege of immunity that corporate officers enjoy), so it is simply silly to say that we can't regulate them on some bizarre human rights claim.
The reason this comes up in the election context is that corporations want to double dip: all of their personnel can give to the individual limit, then give again in the name of the imaginary entity. It's a shell game, and it's good to see Sotomayor is smart enough to see it.
There's no need for an organization to be immune from censure or regulation when its constituents are all themselves immune.
Let's take a concrete example, and suppose that the government outlaws corporations from criticizing government policy. If corporations don't have free speech rights, then it would be perfectly constitutional for them to do so. Do you think that this is okay, since all the individual shareholders still have the right to complain? Even if every individual shareholder gets up at a meeting and says "This new government policy is stupid", the company can be banned from passing a resolution that says "This new government policy is stupid"?
I can see how _some_ individual rights do not extend to corporations, but free speech is not among them. The right of groups of people to assemble and make joint declarations is a fundamental part of the right of free speech.
Do you think that this is okay, since all the individual shareholders still have the right to complain?
Absolutely.
Why should the corporation need a right to speech to furtehr its interests over and above what a partnership, club, community group, or fraternity have?
As I understand it those organizations make joint political declarations all the time, without the benefit of being able to contribute to their chosen political campaigns above and beyond what their members can.
Why do corporations need an extra leg up in defending their political interests?
That's a good question. OK, I certainly don't think that corporations should have any additional rights beyond those of partnerships, clubs etc. If that's the law, then it needs to be changed.
But now I'm confused as to what the actual law is. Let me put this all together... corporations have the right to free speech, and somehow this extends to the right to make political donations. On the other hand, individuals have the right to free speech, yet individuals are severely restricted in the amount and kind of political donations they can make thanks to McCain-Feingold. If the right to make political donations is considered part of the right to free speech then how can McCain-Feingold be constitutional at all?
The restriction is on the right of the political campaign to accept donations, not on the individual to speak. I believe that if an individual wishes to invest their own money to get their own version of the message out, they are free to do so.
The case in front of the Supreme Court is one where a company produced a special that would have been legal if they only worked with private money, but wasn't because they had some corporate money.
There's no need for an organization to be immune from censure or regulation when its constituents are all themselves immune.
I think this requires some clarification. Obviously it's important that the government can't pass laws preventing people from engaging in collective speech. If two people get together and publish a birth control pamphlet (or a right-to-life pamphlet) the government shouldn't be able to say, "By the terms defined in Statute 778-B, you two are a Filth Advocacy Organization and thereby forbidden from advocating birth control." However, a corporation is voluntarily and explicitly incorporated in order to gain certain privileges from the government, so restricting the speech of corporations doesn't present the same threat to free speech.
