Law, Corporations, and Political Speech

March 2, 2016
It’s a fundamental matter of justice, asserts former IW senior editor John McClenahen

“Equal justice under law” reads the inscription on the west pediment of the United States Supreme Court Building on First Street N.E. in Washington, D.C. Proposed for engraving by the building’s architects and approved by two Supreme Court justices in 1932, the four-word phrase captures a governing spirit of the ancient Greeks and a controlling principle of the Fourteenth Amendment to the Constitution of the United States.

Yet we the people continue to inquire about the nature of justice, the meaning of the word equal, the context in which the Constitution is to be considered, and even the very role of the Supreme Court of the United States.

That we continue to ask these questions, in which both business and labor have unmistakable stakes, persuades me that justice under law is not only fundamental national principle, but also an often-underappreciated process, a continuous process in which experience, reason, logic, emotion, philosophy, power, and politics are dynamic primary elements.

A case in point: Citizens United v. Federal Election Commission. The question before the Supreme Court in 2008 seemed simple enough. Does a non-profit corporation’s funding for advertising and broadcast of a self-produced movie critical of a candidate for federal office run afoul of the anti-corruption expenditure and disclosure requirements of the Bipartisan Campaign Reform Act of 2002?

The Court’s not-so-simple answer ultimately depended on how each of nine justices defined such terms corporate political speech, the essential nature of a corporation, the roles and effects of money in American politics, and the Constitutional guarantee of freedom of speech.

The [Citizens United] decision nevertheless left several significant matters unresolved."

In a controversial and remarkably ambitious 5-4 decision, the Supreme Court overturned judicial precedent, reasserted a corporation’s political speech rights, lifted a ban on corporate political funding independent of a specific candidate or the candidate’s campaign organization, affirmed the more-than-century-old status of corporations as individuals, elevated the exercise of reason, and asserted that more speech, not less speech, was a vital American tradition.

The decision nevertheless left several significant matters unresolved. Among them: whether for-profit corporations, unions and other associations of individuals have the same political speech rights and independent funding freedom the Supreme Court found for a non-profit corporation. Also left unresolved was whether U.S. subsidiaries of foreign-based corporations have the similar speech rights and funding freedoms.

Significantly, in only the past month, with uncertainty over who will fill the vacancy created by the death of Associate Justice Antonin Scalia and when that will happen, rose the question of which direction the Supreme Court might next move in squaring the rights of corporations and unions with Congressional efforts at political campaign finance reform. With or without a ninth justice, might the Court strike down legislative bans on direct contributions by corporations and unions to candidates and their campaigns? Or might the Court in deciding some future case, suggest in so many words that Congress provide for public funding of all federal elections?

This is another in a series of occasional essays by John S. McClenahen, an award-winning writer and photographer who for four decades covered international economics, public policy, and management principles for IndustryWeek.

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