Should the First Amendment protect corporate political expression? If not, where should the line be drawn for corporations between freedom and restrictions? Should First Amendment protections apply only to individual citizens?
SOLUTION
Corporate political speech is restricted. Corporations can support candidates and causes through political action committees and, since Citizens United, with independent expenditures. They cannot contribute to candidates directly, a major restriction of their speech.
The arguments for restricting corporate speech begin with the charge that corporations have wealth that could corrupt or strike fear into politicians, undermining the integrity of their decisions. Their “speech” could drown out other voices. For more than 100 years Congress has legislated to restrict corporate speech. Federal courts have generally supported this policy. Corporations are not natural persons. They are not flesh and blood voters. They have no conscience. Their sole interest is in making profits. Also, the Founders never intended the First Amendment to protect corporations. They were suspicious of them and greatly restricted their activities.
The counter argument is that corporate speech is entitled to the fullest First Amendment protection. A corporation is a voluntary association of individuals and as such should be entitled to political speech just as a political party or an interest group composed of farmers or workers. The Founders never intended that the government should balance voices of competing interests. To do so it must be a censor, which is inappropriate. Indeed, James Madison in the Federalist No. 10 wrote: “It is in vain to say that enlightened statesmen will be able to adjust . . . clashing interests and render them all subservient to the public good.” For Madison, the remedy for an interest that would trample on the rights of others is a republican government in which all factions are given free voice. The citizen body is not easily duped. If corporations spend large amounts of money this will be revealed and voters will take it into consideration.
There is a perennial argument about whether corporations should have the same First Amendment or other constitutional rights as ordinary citizens. In the 1886 Santa Clara case, the Supreme Court accepted the theory that corporations were “persons” under the law entitled to the same Fourteenth Amendment equal protection rights as natural citizens. Since then this conclusion has held, but it is politically charged because the “personhood” of the corporation shields it from some government regulation. Leftists, who believe in more regulation, dislike this shield. Conservatives, who seek more corporate freedom, approve of it.
Students can debate whether corporate speech is entitled to the same protection as that of a natural person. If so, more of the restraints put on by Congress over the years will have to be removed. One justice, Antonin Scalia, has already said he is ready to strike down all limits on corporate electoral participation.