January 23, 2010


A campaign funding mess (Kent Greenfield, January 23, 2010, Boston Globe)

The fundamental problem with Justice Anthony Kennedy’s majority opinion is not his view of the First Amendment. Rather, it is his misguided view of the nature of corporations. To Kennedy, there is no difference between humans and corporations for purposes of the free speech analysis.

But he forgets that corporations are not natural beings - they are artificial institutions. When people start businesses, states award them corporate charters as a kind of public subsidy. The corporate form provides the protection of limited liability, protecting shareholders from personal liability for debts of the company. The charter also bestows the corporation with a legal “personality’’ separate from its investors, so that it can sue and be sued without the participation of each shareholder. What’s more, charters also give corporations an unlimited life span, allowing them to outlast their founders.

Corporations are legal fictions, so no one thinks that corporations should be able to vote, serve on juries, or until the Court’s ruling this week, be allowed to use their considerable resources to influence election campaigns especially since those resources come as a result of state-conferred benefits. [...]

Still, there is a way out of this mess.

Instead of using the tools of constitutional law, we need to use the tools of corporate law. Such a change could be put in place tomorrow, by a simple majority vote in both houses of Congress followed by the President’s signature.

Corporations are chartered “for any lawful purpose.’’ To address the mistake of Citizens United, the only change required would be for charters to include: “except that any entity created by this charter shall not have the power to expend money to influence the outcome of any local, state, or federal election.’’

This change would simply condition the benefit of incorporation itself on the waiver of the “right’’ of corporations to participate in political campaigns. The Court has often upheld the ability of government to condition benefits on the waiver of rights. The Court has not always been clear in all the nuances, but the basic rule is that if the government gives you something, it can limit the uses you make of it. It makes sense to assert that prerogative here: if the government creates corporations, it can pick and choose what powers those corporations embody.

...Republicans would reflexively act to protect corporate spending on elections, which the public hates.

MORE (via mcnasty):
CEOs to Hill: Quit calling us for campaign cash (Sharon Theimer, 1/22/10, Associated Press)

Dozens of current and former corporate executives have a message for Congress: Quit hitting us up for campaign cash.

Roughly 40 executives from companies including Playboy Enterprises, ice cream maker Ben & Jerry's, the Seagram's liquor company, toymaker Hasbro, Delta Airlines and Men's Wearhouse sent a letter to congressional leaders Friday urging them to approve public financing for House and Senate campaigns. They say they are tired of getting fundraising calls from lawmakers — and fear it will only get worse after Thursday's Supreme Court ruling. [...]

Among the others signing the letter are current or former executives of Quaker Chemical Corp., Brita Products Co., San Diego National Bank, MetLife and Crate & Barrel.

They sent the letter through Fair Elections Now, a coalition of good-government groups who hope the Supreme Court ruling will lead Congress to pass public campaign financing legislation they have long been seeking.

Posted by Orrin Judd at January 23, 2010 6:56 PM
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