Under state law, corporations are legal persons. This raises the question of whether they have constitutionally protected rights. Over the years, the Supreme Court has held that sometimes they do5 and sometimes they do not. As discussed in Chapter 3, the issue arose again in Citizens United v. Federal Election Commission, 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.” Justice Stevens, with three others, dissented: The real issue is how, not if, Citizens United may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets.

Questions 

1. When a corporation funds political speech, for whom do you think it is speaking? Explain your answer. You may wish to consider these possibilities from the Citizens United majority and dissenting opinions: 

a. “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, 130 S. Ct. at 908 (majority opinion). 

b. “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, 130 S. Ct. at 972 (Stevens, J., dissenting). 

2. A large fast-food chain owned by evangelical Christians adopts a policy that homosexuals will not be served. Would those denied service have a cause of action based on Hobby Lobby? Consider the baker who was fined $135,000 for refusing to supply a wedding cake to a homosexual couple. Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Or. Ct. App. 2017), vacated and remanded by U.S. Supreme Court, 138 S.Ct. 1719 (2018).