Thursday, January 19, 2012

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART FOUR

[Here are parts onetwo, and three.]

GILLETTE:  I’ll concede the point that the story of Senator Clark may be irrelevant for purposes of whether the statute is constitutional.  However, I think the portion of the opinion that dealt with the Anaconda corporation is relevant.  The statute, after all, is attempting to control the influence of corporations.  The Anaconda corporation controlled the state during a significant portion of Montana’s history and the statute is, evidently a response to that control. 

With respect to judicial integrity, presumably the state could protect that integrity by not having its judges elected.  They could, like federal judges, be appointed for life or some other term.  I agree with you that that particular part of the opinion is not particularly well crafted.

While I am not afraid of speech, your lack-of-alternatives argument regarding the marketplace of ideas doesn’t convince me that attempts to regulate the flow of money in political campaigns are misguided. One way of limiting the amount of speech in the marketplace of ideas is the law being upheld by the decision.  The Montana law at issue had been on the books for nearly a century.  Is the democratic process in Montana less robust as a result of the law?  There doesn’t seem to be any evidence that it is less robust.  As I mentioned earlier, Western Tradition is an organization that, in part, is dedicated to overturning laws like the one in Montana.  They are supremely motivated to find a compelling plaintiff to show how democracy is harmed in Montana.  They were unable to do so.  Instead they got two co-plaintiffs who were unable to articulate any impact on them by the law.

Your response to my first question is more difficult.  If money isn’t speech than laws regulating its use aren’t subject to First Amendment scrutiny.  While I can’t imagine that a federal law allowing corporations to only donate money to one party would ever get out of the Senate, it does strike me as conceivable that a state that is dominated by a single party could pass such a law.  However, I suppose that in those states there are fewer donations to state political parties and candidates because there isn’t much by way of competitive elections.   Thus, there isn’t any incentive to pass such a law.

Your response to the second question also touches on the part of the dissent that has caught some attention.  Justice Nelson writes that while corporate personhood is well established law, “I find the entire concept offensive.”  ¶ 132.  According to Justice Nelson, since corporations are creatures of law, any legal protections corporations enjoy should be conferred by the legislature not by the Constitution.  Just Nelson writes “Corporations are not persons.  Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people-human beings-to share fundamental, natural rights with soulless creations of government.  Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound by the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins.  Indeed, it is truly ironic that the death penalty and hell are reserved only for natural persons.”

I have not previously considered my dignity affronted by corporate personhood to be an affront to the dignity of the species.  That said, I take Justice Nelson’s point to be that humans have fundamental rights because of the unique qualities that make us human.  Particularly, I think the justice is referring to free will.  Corporations, of course, don’t have a will.  Instead they have people who are tasked to act in furtherance of the corporation’s purpose.  With respect to for-profit corporations, the corporation exists to make money.  Political action corporations exists to propagandize for a cause.  Corporations, unlike humans, do not have to navigate the junction of emotional, physical, social, and philosophical imperatives that drive humans.   Lacking these motivations, corporations are different enough from human beings that, according to Justice Nelson, they shouldn’t be afforded the same rights.

You say that if corporations aren’t people then their speech can be regulated to the point of being forbidden (or perhaps also compelled).  Moreover, if corporations aren’t people than presumably corporations have no rights under the Fourth Amendment.  Given that corporations have no rights under the Fifth Amendment (see U.S. v. Kordel, 397 U.S. 1 (1970)), one might argue that whatever Fourth Amendment rights they have are illusory.  I didn’t research the point, but I hope that corporations don’t have any Second Amendment rights.

Limiting or eliminating corporate speech is only a problem if you regard corporate speech as somehow important.  There are, I suppose, arguments pro and con that point.  One thing that I think people who feel like Justice Nelson overlook is that whatever rule gets created regarding corporate speech will apply equally to entities one might think of as doing good as to entities one thinks of as acting more like the Anaconda Corporation.

How’s your personal/species dignity doing since Citizens United?



  1. A recent blog post I was alerted to (at

    Justice Ginsburg’s statement from yesterday’s order granting a temporary stay in the case of American Tradition Partnership v. Bullock:

    “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.”

    The stay will allow the parties to file a cert. petition. Whether this case will provide the Supreme Court with an opportunity to reconsider or narrow the Citizens United ruling is discussed here:


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