Friday, January 22, 2010
“If the First Amendment has any force it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Citizens United v FEC.
Interesting. For a bunch of “strict constructionists” they appear to construe the Constitution quite broadly. I dare say the imputation of First Amendment rights to corporations on par with speech rights enjoyed by natural persons would be a concept alien to the founding fathers. Indeed, equating corporations with “associations of citizens” is quite a leap itself. If corporations are anything they are associations of capital and not citizens. The corporate law imposes no citizenship, or even residence, requirement on stockholders.
The globalization of capital markets ensures that stockholders in any of America’s largest corporations will not be made of up US citizens. So, while we correctly restrict the ability of non-citizens to participate in US elections, we leave open a large loophole for non-citizens to be very active participants. Does anyone think Carlos Slim can’t incorporate a Delaware entity named “Elections Are U.S., Inc.” with its stated nature of business reading something like: “The purpose of this corporation is to undertake legal activities to influence the US political process”?
My objections to this decision are almost entirely rooted in the corporate law. For example, the biggest mistake of the decision released last night, I think, was an extension of the argument that corporations are and share the same rights as natural people. Well, they're not. They're state created and regulated entities granted charters by the stated to serve a public purpose. States still, near as I can tell, maintain the right to grant and/or revoke charters on such conditions as they see fit. General incorporation statutes are only a little over a century old. Oh, I could go on, but I'll get off my soap-box.
Update: You know, I've been thinking about it. I think these rules that dictate how and under what circumstances a corporation can communicate with their shareholders are violations of a corporations free speech rights. I think maybe we should also abolish the Federal Securities Laws while we're at it as an impermissible restraint on speech.