The question of whether corporations have constitutional rights may be less important than many assume. In 2010, the Supreme Court's Citizens United v. FEC case ruled that Congress couldn't ban corporate speech on political candidates. The result was a wave of outrage at the idea that corporations could have First Amendment rights.
On December 30, the Montana Supreme Court took the extreme step of refusing the follow the justices' decision, holding in Western Tradition Partnership Inc. vs. Attorney General that Montana had the right to criminalize corporate political speech. Suffice it to say that it is rare for a state high court to blandly ignore the Supreme Court's decisions.
Much of the outrage over Citizens United comes from the belief that the court's decision rests on the assumption that corporations are entitled to the same kind of moral and legal respect as actual human beings. Embedded in this outrage, however, is an important and controversial assumption about the nature of free speech.
According to one view, free speech is about personal freedom and personal expression. By speaking we assert our individuality and define ourselves as human beings. On this view, the First Amendment protects a deeply personal right. Corporations, however, aren't people and cannot define themselves as human beings. Their choices simply aren't entitled to the same moral respect as the personal expressions of individuals.
There is, however, a competing view of freedom of speech most famously captured in Justice Oliver Wendell Holmes' image of the "marketplace of ideas." On this view, speech is not about individual expression. Rather, speech is about the generation of ideas and arguments, with success in the cut and thrust of public debate providing the test for any particular viewpoint.
On this view, the First Amendment does not protect some vital aspect of humanity tied to freedom of expression. It's not really about individual rights at all. Rather, it keeps the state from suppressing the social process of debate. In debate, however, what matters is not the identity of the speaker but the content of the speech, a content that can be judged only by its success against other arguments.
Despite what anyone says, no one believes that the freedom of speech is absolute. Fraud, criminal conspiracy, bribery, and illegal contracts are all communicative acts of one kind or another, and everyone agrees that in some cases they ought to be banned by the government.
The issue in Citizens United and Western Tradition Partnership is whether corporate speech at election time is a kind of corruption, a quid pro quo given to candidates in return for their support. This is something on which reasonable people can disagree.
It seems implausible to suppose that the fear of corporate political advertising has no impact on political candidates. On the other hand, scholars have tried in vain to find evidence that politicians change their positions based on political contributions. It would seem that supporters — including corporations — support those they agree with rather than trying to corrupt those with whom they disagree.
One might insist that the brute fact of money distorts electoral outcomes. After all, don't better-funded candidates generally win? If this is so, then independent corporate expenditures on campaign speech could just be a way of increasing the spending in favor of one candidate rather than another. Again, the factual record seems to be ambiguous.
On the front end, money is hugely important. It is difficult for a candidate with no funding to succeed. On the other hand, on the back end it is difficult to "buy an election." Well-funded candidates regularly lose to popular but less well-heeled rivals. In the language of economics, there are diminishing marginal returns to campaign spending.
Not surprisingly, when it comes time to balance these concerns against the value of free speech, how one conceptualizes that value matters enormously. If free speech is about free expression and human self-definition, then even a weak case for the corporate corruption of politics via speech will be a slam-dunk. Corporate speech simply isn't the sort of thing we need to protect.
On the other hand, if the purpose of the First Amendment is to protect the marketplace of ideas, then the corporate identity of a speaker is irrelevant. What matters is whether or not the speech is part of the debate, because it is the debate itself — rather than any individual right — that the First Amendment protects.
Nathan B. Oman is an associate professor of law at The College of William & Mary in Virginia.