James Madison Would Approve?

Personally, I have always been fascinated by history, especially history of the founding of our country. So, in reading Citizens United v. FEC, 130 S.Ct. 876 (2010), I wondered how the decision would comport with the ideas behind the Constitution, especially those of the Federalists, like James Madison.

In the opinion for Citizens United, Justice Kennedy quotes James Madison's Federalist Paper No. 10 in support of the proposition that the government had "muffled the voices that best represent the most significant segments of the economy," i.e. corporations. Id. at 907. The Federalist Papers were a series published in New York newspapers during the Constitutional Convention in 1787. Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 268 (1986). Although the series was signed "Publius," the papers were actually written by James Madison, Alexander Hamilton, and John Jay and constituted the Federalist point of view. Id. The papers are now widely considered as the "final eloquent exposition of the United States Constitution, and . . . serve as an aid to the courts, to Congress and the President." Id.

The opinion cites a Federalist Paper written by Madison when stating, "[f]actions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than disease. Factions should be checked by permitting them all to speak and by entrusting the people to judge what is true and what is false." Citizens, 130 S.Ct. at 907 (internal citations omitted). After this decision, however, many scholars now debate whether the determination that the prohibition on corporate independent political expenditures as an unconstitutional outright ban on speech of corporations is truly what the framers of the Constitution, like Madison, who was the primary drafter of the Bill of Rights, intended.

Although we can only speculate, it is probably safe to assume that the modern corporation was not envisioned by the drafters of the Constitution. That fact alone, however, does not necessarily make the extension of its provisions void to such organizations. The Constitution is like no other document of its type in history in that it has been malleable to modern expansions of traditional ideas, such as the corporation. But was the idea of corporate person-hood and the idea of corporate freedom of speech really intended by the drafters of the document itself? The best answer to this question is like most others in law, it depends.

Some scholars point to the fact that Madison fought the establishment of a national bank as evidence of his aversion to this principal. Others also point to his warning of corporate interference in politics, calling corporations necessary evils that require proper limitations. Still others, like Justice Kennedy, point to the Federalist Papers as evidence to support the proposition that fractions are necessary to our governments and should be given protection, even if coming from a corporation. Citizens, 130 S.Ct. at 907. Like the Constitution itself, however, the Federalist Papers and other writings of the founding fathers lend themselves to interpretation, which is what makes them still relevant but also frustrating when looking for a solid answer. The writings often take the interpretation of the reader.

Arguably, the more important question is how does this important decision impact the future and the rights that corporations are given moving forward; however, a look to the past may give us direction for the future. Is a corporation now a citizen?

An Attack on Democracy hits close to home

Now that the “historic” 2010 mid-term elections have come and gone, it is time to reflect on the outcome of the election as a whole and how outside influences have impacted campaigns. One of the hallmark characteristics that history will define the 2010 mid-terms from will be that corporations could spend unlimited funds promoting one candidate over another and, more typical, bashing one candidate to assist another candidate. Nationally, millions upon millions of dollars were given to candidates by outside groups such as the United States Chamber of Commerce and American Crossroads. The Week magazine has an excellent break down of the spending here. This new wave of money being spent by Super-PACS has occurred because, as The Week simply put it, “The Supreme Court's decision in Citizens United v. the FEC earlier this year gives corporations and unions the same rights as individuals when it comes to free speech — meaning Big Business can spend as much as it likes on influencing public debate. Super PACs have emerged to help solicit those funds from corporate donors.”

In addition to corporations and Big Business being able to freely spend as much as it likes on influencing elections, many of the new Super PACs that have emerged do not have to disclose who is funding them. Many new Super PACs have registered as non-profit organizations under the tax code 501(c)(4). Such a registration allows Super PACs to promote policy and influence elections with a virtually unlimited supply of money from nameless individuals. Such a loophole has created a scenario where foreign entities have the potential to influence our elections. This scenario, most notably, reported when the United States Chamber of Commerce began pouring money into elections at all levels to the tune of $75 million. The issue of foreign contributions arose with the United States Chamber of Commerce because it receives donations from foreign entities and deposits all monies into one general account. Such an account is then used to finance political activities, hence, foreign contributions are funding domestic politics. While the Chamber of Commerce aspect has been the most widely commented in the news media, any 501(c)(4) organization could easily used undisclosed foreign contributions to finance political spending activities.

This activity by Super PACS has opened a new debate focused on whether or not such activity by organizations who do not disclose donations is an abomination on our democratic process itself. In a post in “The Hill” newspaper, Robert Weissman discusses how donations to Super PACS will hurt our democratic process. In his article, Weissman states that Super PACS are merely attack machines from organizations with no real membership or accountability. The other side of the debate focuses on ‘liberating’ advocacy groups to talk openly with people. Such an argument of liberation is bunk and undisclosed spending has started to hit too close to home.

In the recent Senate election between then Governor Joe Manchin and business mogul John Raese, West Virginia was the recipient of millions of dollars of Super PAC contributions. The Charleston Gazette first reported that a Super PAC was going to be spending large amounts on the Senate race. In the October 1 article, it was reported that American Crossroads GPS, an organization funded in part by Karl Rove, would be spending a massive amount of resources in West Virginia. The article states that American Crossroads would spend money on mail and phone calls. Additionally, the organization and several other Super PACs spent money in the Mountain State on television advertising aimed at negative advertisements against candidates.

West Virginia is an interesting study in the new arena of Super PACs. While Super PACS spent millions in West Virginia, using American Crossroads as a focus in the West Virginia Senate race, it was, seemingly, unsuccessful. One may, at first glance, think that spending millions like this would be a moot issue. However, even though the Senate race was perceived as lost by Super PACs that invested in the Republican Senate Race, the perceived loss was actually a victory. Although the Republican nominee for Senate lost and the Democrat candidate won, the investments by Super PACs throughout West Virginia has allowed for the Republican Party within West Virginia to expand. While this may not sound like a big deal to a lay person, it is a huge deal to a politico who studies West Virginia politics. As an historically Democrat state, West Virginia has slowly started to turn Red on a national scale. Not only has West Virginia voted for the Republican Candidate for President in every election since 2000, our state now has 2 out of the 3 Congressional districts represented by a Republican. Such an investment by Super PACs has helped this transformation to occur.

An influx of capital and attention, starting in 2000, exacerbated in 2004 and 2006 by Don Blankenship’s personal investments, and then further intensified by investments in Super PACs in 2010 has shifted the average West Virginian’s focus away from their personal needs and economic concerns and towards social issues merely tear apart friends and neighbors. This is not to say that only an influx of monies in West Virginia political races has turned West Virginia from a Democratic stronghold to a state that has the potential of going red. Historically, West Virginia has always trended more conservative than average blue states. However, the influxes of money from out of state corporate entities have allowed Republicans to spread their message more easily than in the past. The problem with such ability by the Republicans, especially, is that most of the funding used to spread the Republicans’ message, particularly in the 2010 election cycle, came from interests outside of our state. This can be likened to foreign monies being used to fund national races as noted above with the U.S. Chamber of Commerce illustration. So where does one draw the line?

The decision by the United States Supreme Court in Citizens United took an electorate system that was already influenced by corporations and outside interests and place it on steroids. This decision has done nothing but further complicate our election cycle and continue to turn people off to voting because of relentless negative campaigning brought on by corporate interests. The Supreme Court has allowed corporations to be viewed as having almost identical rights as individuals when it comes to campaign contributions. This decision has only started to wreak havoc on our political system. By allowing the wealthy corporate interests to dominate the political contribution arena, elected officials will become even more concentrated on raising money to get re-elected instead of serving the people they were elected to serve. The need for money was at a premium before Citizens United. Now that elected officials know that they will have to compete with corporate interests who have virtually unlimited bank accounts, even more time will be allocated to fund raising and less time will be spent on the democratic process.

Justice Stevens and the Anti-Distortion Rationale

Rick Hasen blogged yesterday about comments made by retired Justice John Paul Stevens concerning Citizens United. Justice Stevens' comments focused on the anti-distortion rationale rejected in Citizens United. He emphasized the idea that an actor in an election debate who has more resources than the other actors will distort the ability of the voters to make their decisions. Justice Stevens made these comments on "60 Minutes" this past weekend. You can read and see the original CBS story here. His Citizens United-relevant comments I repost from Hasen's blog:

SCOTT PELLEY (voiceover): In Citizens United, the majority gave corporations the right to spend as much as they want on political campaigns; the majority said that limiting money in politics is the same as limiting free speech.

Where does the court make a mistake in your view?

JUSTICE JOHN PAUL STEVENS: Well, you know, which mistake do I want to emphasize?

(Justice John Paul Stevens laughing)

SCOTT PELLEY: You decide.

JUSTICE JOHN PAUL STEVENS: Well, you know, basically an election is a debate. And most debates you have rules. And I think Congress is the one that ought to make those rules. And if the debate is distorted by having one side have so much greater resources than the other that sometimes may distort the ability to decide the debate on the merits. You-- you want to be sure that-- that it's a fair fight.

As I have stated during the recent forum Professor Amerson and I hosted with West Virginia University College of Law and the University of Akron School of Law, the rejection of the anti-distortion rationale represents, in my view, a departure from the Supreme Court caselaw that represented an uneasy but necessary pragmatism concerning corporate spending in elections. In his way, Justice Stevens echos this thesis quite pointedly and precisely. I will say more about this in future blogposts and other publications.

The More Things Change, The More They Stay The Same

In considering Citizens United, it appears that nearly everyone believes that either corporate election spending is a bad thing or that it is a good thing. Query whether it is in fact nothing.

First, the growth in election spending predates Citizens United. Total election spending, including dollars spent by presidential candidates, senate and house candidates, political parties and independent interest groups, has risen from $1,618,936,265 in 1998 to $5,285,680,883 in 2008. (http://www.opensecrets.org/bigpicture/topcontribs.php?cycle=2008). Thus, any argument that Citizens United generally taints elections with money is misplaced. Money, lots of money, has generally tainted elections for a long time. To the extent that this money makes politicians beholden to special interests, I personally don’t believe that the difference between $5 billion and $10 billion is significant; certainly, the former is enough to buy the loyalty of politicians. The latter doesn’t make it any truer than it already is.

Second, there appears to be a strong sentiment that corporate spending post-Citizens United will benefit the Republican Party. The facts do not support this contention. As has been pointed out by some bloggers herein, corporations have been able to contribute large amounts of money through PACs, and even though that spending was not as direct, it has not been disputed that voters nonetheless understood which candidate was being supported or disparaged. Consider also that in the 2008 election cycle only 16 of the top 100 overall donors leaned Republican. (http://www.opensecrets.org/bigpicture/topcontribs.php?cycle=2008). Moreover, something that is not understood by many is that regardless of an organizations political leaning, business organizations tend to contribute money to candidates from both parties. The logical is simple: a corporation may prefer one candidate, but the prudent thing is to hedge your bets and not entirely p*** off the other candidate who might win the election. Thus, the third largest contributor in 2008, JPMorgan Chase & Co, contributed 60% of their dollars to Democrats and 40% to Republicans; conversely, the American Bankers Assn was the top Republican contributor and 18th overall contributor in 2008—it donated 43% to Democrats and 57% to Republicans. (http://www.opensecrets.org/bigpicture/topcontribs.php?cycle=2008). Money tainted elections before Citizens United—and it tainted both sides of the aisle.

Third, the argument seems to be that increased corporate spending will have a greater influence on the outcome of elections. This presumes that voters make their decisions based on the effects of said spending and furthermore presumes that the difference between $5 billion and $10 billion is meaningful. The data suggest that neither of those is true. In fact, most research shows that campaign spending is subject to the law of diminishing returns; thus, the magic number is actually a minimum amount necessary to gain name recognition with the electorate—every dollar above that threshold means less and less to the outcome of an election. (http://www.economist.com/node/17201957).

In summary, I’ll be the first to say that spending of this type in elections doesn’t pass the smell test—but almost nothing about politics in this day and age does. Thus, at worst, Citizens United represents one more turd on top of the steaming pile of crap that this country’s politics have become—but it doesn’t make it any stinkier than it already is.

Does non-profit have to mean apolitical?

Non-profit, 501(c)(3) organizations are a mainstay of American life. In 2001, non-profits employed 9.5% of the American labor force. We give generously to well-known non-profit organizations, such as the United Way, the Susan G. Komen Foundation, and the ASPCA. And as a society, it seems that Americans increasingly trust non-profits (including religious organizations) more than the state or industry to address the "most pressing issues of our time."

So if we Americans like non-profits so much, why can't 501(c)(3) non-profit organizations donate to political campaigns? And since 501(c)(3)s are really just corporations, doesn't Citizens United mean that they can?

Answer to the former: I've got some ideas. Answer to the latter: the tax code.

As to why non-profits can't currently participate in elections, there are symbolic reasons and there are more practical ones. First, symbolically, non-profits are an idealized reflection of ourselves. Non-profits, we believe, operate only to serve their clients, and to improve life in our communities. In some ways, doesn't this put them above politics and therefore the citizenship the Citizens United court was oh-so-worried about?

On the other hand, this conception of non-profits ignores two realities: 1) that non-profits, like for-profit corporations, have to keep the lights on and make payroll; and 2) political action may be a more effective means than individual service delivery of improving life in communities. As employers of nearly 10% of the American workforce, oughtn't non-profits have the same opportunities as for-profit corporations to donate to candidates who support beneficial employment law? And surely it would be a good idea to allow powerhouses like the Susan G. Komen Foundation to support candidates who would vote to remove carcinogens from consumer products so we'll have fewer cases of breast cancer to begin with?

More practically, Americans decided long ago to trade the political potential of non-profits for a tax write-off. The tax deduction which 501(c)(3)s offer to the their donors may or may not actually encourage giving, however. Some commentators contend that it only affects the timing of gifts, while, on the other hand, others ask whether a wealthy person would really create a foundation at all were it not for the tax benefits. Still, the Freakonomics guys suggest that, in a situation of perfect information, the guy in the 40% tax bracket sure as heck isn't going going to give away $100,000 for a $70,000 tax deduction, since he's still out $30,000.

The tax write-off is important for one simple reason: the state will not provide the tax incentive and Citizen United corporate political rights at the same time. It's just not going to happen. The grant of tax benefits to non-profits was in some ways predicated upon non-profits' apolitical nature. Revision of the tax code to allow political activities by the 501(c)(3)s (and not just the limited advocacy and education activities allowed 501(c)(4)s) just doesn't fit in that scheme.

All this could lead one to question the American policy of providing tax incentives for charitable giving. If the tax write-off isn't a huge motivator of donations, and political action promises a more effective means of remedying society's ills (big assumptions, I know), then wouldn't it make more sense to revise the tax code and bring 501(c)(3)s into the big old citizenship tent the Supreme Court pitched in Citizens' United?

Just a thought.

Controversy Over Corporate First Amendment Rights

An obvious part of the debate concerning the ruling in Citizens United revolves around whether corporations should receive first amendment rights. In writing the holding Justice Kennedy stated that “Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.” Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 925 (2010). On the other hand the dissent noted that “when [the framers] constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. Id. at 950. Justice Scalia weighed in on the debate by stating “[t]hat is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women-not, for example, of trees or polar bears. But the individual person's right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of ‘an individual American.’ It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different-or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.” Id. at 928.

Post Citizens United it is important to acknowledge that there are differences between individuals and corporations. Individuals are born. Individuals have essentially “unlimited” means to make a living but are in large part limited to the fruits of their labor, investments and inheritances. In the context of political expenditures, each individual’s speech capabilities involve using their personal assets to contribute in a manner consistent with their political and personal beliefs. Corporations are created. Corporations have essentially “unlimited” earning potential. In the context of political expenditures, corporations’ speech capabilities involve corporations using corporate funds to “speak” for their shareholders and the corporation at large.

It can be argued that the inherit differences between individuals and corporations in their creation and capabilities suggests that additional safeguard measures are needed. The simple fact is that corporations are now permitted to use general treasury funds for political communications. The same cannot be said for individuals who use their own funds and speak only for themselves with their political contributions.

The Citizens United decision prompted calls to amend the constitution as well as various legislation and proposals including “increasing disclaimer requirements, increasing disclosure for tax-exempt organizations, requiring shareholder notification and approval, restricting U.S. subsidiaries of foreign corporations, restricting political expenditures by government contractors and grantees, taxing corporate independent expenditures, and providing public financing for congressional campaigns.” CRS Report 7-5700, Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues, by L. Paige Whitaker, Erika K. Lunder, Kate M. Manuel, Jack Maskell, and Michael V. Seitzinger. See also CRS Report R41054, Campaign Finance Policy After Citizens United v. Federal Election Commission: Issues and Options for Congress, by R. Sam Garrett.

It is still unclear which of these or other safeguards will be implemented but it is fairly certain that the calls will not go unanswered. There is a generalized concern that corporations may not act in the best interest of shareholders. There are also concerns involving contributions from foreign corporations and corporations holding government contracts. It is clear that the debate surrounding Citizens United will continue well into the future.

Could your city be for sale?

Most of the focus on Citizens United v. Federal Election Commission has been centered on the impact of unlimited corporate spending in presidential, senatorial, congressional, and gubernatorial elections. Although I am concerned about limitless corporate election spending in federal and state elections, I am more worried that Citizens United will have a negative impact on local governments.

Why would a corporation spend money on a city council or mayoral election when it could spend money supporting (or more likely opposing) a state or federal candidate? I suggest there are three reasons corporations may opt to use their new found free speech right to influence local government elections more easily than the state and federal government.

First, let’s face it, corporations will likely be able to get more bang for their buck in a city election. Unlike a state or federal election, it does not take much money to have a great influence on the outcome of a city council or mayoral race. For instance, when I was elected to Fairmont City Council in 2006, my campaign spent just $2,000. I can’t imagine I would have been successful had a corporation been willing to expend thousands of dollars to tear me down and/or advocate for one of my opponents. Of course, this claim doesn’t hold true for larger cities, but in West Virginia it is pretty cheap to play in city elections.

Second, corporations are more likely to get quick results from buying a few council seats or the mayor’s office. Corporations and citizens interact with local governments more on a daily basis than any other governmental entity. Both citizens and corporations rely daily on services proved by cities such as: water, sewer, police, fire, parks, snow removal, code enforcement, and garbage. All of these services are vitally important to the success of any corporation. Under Citizens United, corporations will be able to influence local elections so easily that our city services could begin to serve the interest of the corporation more than city residents. The nature of operating a city lends itself to be manipulated very easily for particular people or corporations. With a purchased council or mayor, a corporation could ensure that its interests are the top priority in terms of distribution of services.

Third, infrastructure is the lifeblood of any economy and corporations may be able to use their new found campaign spending right to improve their infrastructure at the expense of city residents. This could be done either through unlimited spending on a municipal bond election, which might not necessarily be completely self serving, or clandestinely pulling the strings of a city council or mayor it got elected.

I bring up the issue of corporate political spending in city elections, not because I believe that corporations are trying to “buy” city councils, but just to point out potential negative impacts Citizens United may have on our cities.

Freedom of Speech?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. Amend. I. The protection of the freedom of speech has surfaced in a variety of contexts. The Supreme Court’s ruling in Citizens United v. Federal Election Commission exasperated the debate with respect to the freedom of speech of corporations. Let’s pause for a moment and consider the most basic thoughts that one attributes to the freedom of speech clause in the first amendment. Merriam Webster defines speech as

a : the communication or expression of thoughts in spoken words b : exchange of spoken words : conversation
2 a : something that is spoken : utterance b : a usually public discourse : address
3 a : language, dialect b : an individual manner or style of speaking
4 : the power of expressing or communicating thoughts by speaking
http://www.merriam-webster.com/dictionary/speech.

With today's technology and numerous communication outlets it is easy to see how a debate can arise over the freedom of speech.

In Citizens United, the Court noted that “Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 891 (2010). Let’s set aside the deeper argument of whether corporations are “people” for one moment. Consider now, the most basic definition of speech. Can a corporation express thoughts in spoken words? Not really, representatives from the corporation can speak on behalf of the entity. The corporate name can also be affixed to articles, advertisements, websites, etc. See footnote 55.

It is clear then why the general public may find the ruling in Citizens United puzzling. Looking into the matter one will quickly locate articles and petitions for limiting the first amendment to the freedom of speech of people. One such example is the website Public Citizen. The site currently has 71,415 signatures. http://action.citizen.org/t/10315/petition.jsp?petition_KEY=2190. The commentary makes it clear that the signatories are outraged. For example, “I don't ever want to see another election taken over by attack ads from persons/corporations unknown as we saw in the 2010 Midterm elections. That is not democracy as I understand it!”

Immediately preceding the holding in Citizens United, the Court notes that
“[m]odern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the ‘purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value’ in order to engage in political speech. 2 U.S.C. § 431(9)(A)(i). Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election.” Id. at 917. The Court continues by stating “[t]he First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” Id. (quoting McConnell v. Federal Election Com'n, 540 U.S. 93, 341, 124 S.Ct. 619 (2003)).

The short of it is that corporations are now permitted to make unlimited political expenditures. I do not buy into the fact that money equals speech but for now…maybe it does.

Serving Society?

The Citizen’s United v. Federal Election Commission case was based on concerns surrounding the rights of the Constitution’s 1^st Amendment and infringement of a corporation’s free speech. 130 S.Ct. 876 (2010). Namely, a corporation’s freedom to finance campaigns. Before this case, following Austin v. Michigan Chamber of Commerce, corporations were not permitted to use their treasury to support or oppose candidates in elections. 494 U.S. 552. The question turned on whether a corporation had the right as a citizen or person to spend money on campaign advertising?

In this landmark Supreme Court decision of Citizen’s United held that federal restrictions on a corporation advocating candidates in an election were unconstitutional. Following this decision, a corporation is said to be a person, with 1^st Amendment rights. Now, corporations are permitted to run their own ads in support of a candidate, but are not allowed to contribute directly to the candidate. As part of the Bipartisan Campaign Reform Act, citizens, in conjunction with their 1^st Amendment freedom of speech rights, may spend money on political advertising for a candidate. However, in support the contributor must disclose themselves and the amount of money donated. However, following Citizen’s United, a strong requirement of corporations to disclose this information, has not been seen.

In the wake of the Citizen’s United holding allowing corporations to spend money on political campaigns there has been a substantial increase in spending. Statistics for 2008 show $2.8 billion dollars on campaign support. Nearly doubling in 2010 at close to $4 billion. it is reported that a large majority of this influx has come from outside, independent sources in response to Citizen’s United’s 2010 decision. In this past week’s West Virginia election, Conservatives outspent Liberals at a ratio of 2:1 and won the Senate. Does this mean that speech equals money? Possibly, especially when shown in these local elections that $12.7 million spent on the senatorial race came from advocacy groups that were not party related.

We must further ask whether this new money pumped into campaign elections interferes with a citizen’s ability to decide elections. Chief Justice Marshall describes a corporation as "an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law." Given that corporations are often considered profit-maximizing creatures of the state, there may not be a direct correlation between the interests influenced by the wealth of a corporation and the actual needs and wants of the people. Were the results of the 2010 West Virginia election the voice of the people and their needs or were they the voice of the people influenced by a corporation’s support of a candidate, pursuing their own corporate financial agendas?

Although, Citizen’s United is said to have overruled the concerns above, Congress should readdress the Bipartisan Campaign Reform Act in enforcing a corporation’s disclosure of campaign support. Corporations are allowed to speak freely, through large campaign contributions, as legal persons. This creates the potential to greatly influence the public. Voters need to be able to clearly recognize what the company is advocating and what interests might be at issue. The dissent recognizes that corporations are different from actual people because they have no feelings, thoughts, or desires. They have one agenda, maximizing shareholder value. But, in serving their desires, are they serving the greater good of society?

A Minimal Discussion of Integral Players

Based on the purpose of a corporation and it’s, for the most part, undisputed duty to maximize shareholder profits, one will be surprised to find a small portion of the Citizens United v. Federal Election Commission (FEC) dedicated to the discussion of shareholder protection. 130 S.Ct. 876 (2010). A corporation is essentially a sum of all of its total parts—the shareholders. Each individual shareholder has his or her own thoughts, feelings, and opinions concerning politics. It seems rather counterintuitive for a minimal focus to be given to the most integral parts of a corporation—its shareholders.

The Court addresses the issue of shareholder interest by presenting the Government contention “that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech.” Id. at 911. This contention is followed by a stated belief that this particular interest “would allow the Government to ban the political speech even of media corporations.” Id. (citing Id. at 905–06). I am of the impression that such a conclusion, a ban on the political speech of media corporations, is an impractical assessment. But this argument must be qualified; it is dependent upon a “media corporation” meaning companies that produce news media—newspaper, television stations (CNN, MSNBC, etc.), news talk radio.

I find this argument to be unfounded because of the purpose of “media corporations.” A media corporation, in my view, is to present news, which may include political campaign coverage or debates on the issue. The shareholders of such a corporation are aware of the various contents, as well as political material, that may arise due to the character of the corporation itself. The knowledge and obviousness factor present with a media corporation should be seen to distinguish the various shareholder interests. Corporation “New Age Tupperware” (NAT) (for the busy, traveling dieter) shareholders would not be able to locate a similar purpose, or character, referenced above. The shareholder of NAT would not assume, or be able to predict, that the interests that they have invested into the corporation will end up contributing to an oppositional video to the “rubber stamp” candidate, whose views are aligned with their own. My assessment of the situation, based on this assumption of a “media corporation,” would invalidate the belief that the government interest asserted above would lead to a complete ban, even on media corporations. Thus, the minimal attention given the shareholder protection and interest is even more counterintuitive.

The minimally addressed issue of shareholder protection is given further thought in the dissent. The focus is turned on the use of the PAC in minimizing the risk posed to the “political convictions” of shareholders. “The PAC mechanism . . . helps assure that those who pay for an electioneering communication actually support its content and that managers do not use general treasuries to advance personal agendas.” Id. at 977. My question to this assertion is what safeguards are introduced that can prevent subverting shareholder monies into PAC funds? What corporate regulations are in place to ensure that the PAC does not simply exist as a way to circumvent the law?

In conclusion, shareholder protection is almost a non-existent concern throughout the voluminous discussion of Citizens United, yet I believe, as I assume many others do as well, that such a fundamental characteristic of the corporate structure should have been given more focus. The question I pose through my above referenced argument is: Does the inadequate look at shareholder protection, and interests, in Citizens United compromise the validity of the outcome?