Under state law, corporations are legal persons. This raises the question of whether corporations have constitutionally protected rights. Over the years, the Supreme Court has held that corporations are sometimes entitled to constitutional protections and at other times not so entitled. As discussed in Chapter 1, the issue arose again in Citizens United v. Federal Election Com’n, 130 S. Ct. 876 (2010), in which the Court, over a strong dissent, enunciated a wide-reaching principle that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.”
When a corporation funds political speech, for whom is it speaking? Consider these possibilities from the Citizens United majority and dissenting opinions: Wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech. Citizens United, supra at 908 (majority opinion). It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Citizens United, supra at 972 (dissent).