Thursday, June 12, 2014

The Corporation and Free Speech- Three Views

Greetings from Salvador, Bahia, one of the twelve cities hosting the World Cup. Apologies in advance for any spacing issues. I am typing on an iPad with spotty internet service in Brazil so editing is an issue. The long plane ride gave me some time to reflect on the Law and Society Conference I attended two weeks ago. It was my second time and once again, it didn’t disappoint. I served as the discussant on a panel on Theorizing the Corporation with Elizabeth Pollman, Charlotte Garden and Sarah Haan. All of the papers talked about a right to speak. The common theme was the question of who is speaking, the basis of that right and whose interests are being served by the speech. I found them particularly interesting given my background. Prior to joining academia I was a deputy GC and our PAC and lobbying activities reported to me. Elizabeth Pollman presented "The Derivative Nature of Corporate Constitutional Rights", which she co-authored with Margaret Blair. She started off by providing us with a 200-year history of the corporation which I plan to incorporate in my BA class next fall. Her paper provided a framework for the court to think about corporate rights in a number of ways ending with Constitutional and particularly First Amendment slant. Before a court is going to extend constitutional protections to corporations, she asks judges to consider whether the corporation represents an identifiable group of individuals in the matter at stake or whether the corporation has its own interests distinct from any specific group of individuals. The second threshold question she asks is whether extending the protection to the corporation is necessary or convenient to ensure that the rights of the individuals that the corporation represents are protected. Sarah Haan's paper "Opaque Transparency: Outside Spending and Disclosure by Business Entities" examined corporate and individual rights from another perspective. I was completely surprised to learn that the majority of reported outside spending from the 2012 federal election came from privately-held, not publicly-held companies, including a large number of unincorporated organizations such as LLCs. She noted that more than 40% of spending by privately-held companies was obscured in some way in terms of the source of the funding. I think many of us know about the Koch Brothers, Sheldon Adelson and some wealthy individuals but I hadn't realized how many LLCs and other non-public companies where involved in financing elections. She asked us to think about the value of transparency and disclosure- a common theme from the corporate Law and Society panels and the recent BLPB posts. Specifically, she proposes that privately-held entities should be compelled to reveal the names of the individuals who control them, at least in federal elections. Charlotte Garden's article "Citizens United and the First Amendment of Labor Law" looked at speech rights from the union perspective. She observed that unions have different speech rights than others and posited that the recent McCutcheon case, which looked at the effect of corruption in the political process, might eventually have an effect on future corporate and union campaign finance cases. Next week I will discuss some of the interesting trends that emerged from Emory's Teaching Transactional Law Conference. Now back to celebrating Brazil's first win. Adeus from Bahia.

http://lawprofessors.typepad.com/business_law/2014/06/the-corporation-and-free-speech-three-views.html

Conferences, Constitutional Law, Corporate Governance, Corporations, Current Affairs, LLCs, Marcia Narine | Permalink

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