Legal Commentary

There has been a minor dust-up, largely confined to the internet, over reports that ChikChick-Fil-A was the co-sponsor, along with the Pennsylvania Family Institute, of an event called The Art of Marriage, designed to give couples a chance to examine their marriages and what the Bible has to say about marriage. The Pennsylvania Family Institute also is leading efforts to put an anti-marriage-equality constitutional amendment to the public. Chick-fil-A insists (via Facebook) that the corporation is not a co-sponsor, but that an independent franchisee merely is donating food for the event. Of course, ChikChick-fil-A has long cultivated its image as a "Christian" company (famously being closed on Sundays); and the company, and its charitable arm, the WinShape Foundation, have been linked to a number of religious-conservative and anti-marriage-equality sources, including Focus on the Family. Implicit in the controversy is the  suggestion that, by patronizing Chick-fil-A (full disclosure: it is my absolute favorite fast-food chain and I did cartwheels when one opened on FIU's campus) one is supporting their anti-equality efforts and an appropriate response is for supporter of marriage equality (and gay rights generally) is to boycott the company.

Missing from this controversy is any suggestion that a corporation such as Chick-fil-A is wrong to sponsor political and social events (as opposed to the suggestion that it is wrong to take the position is is taking). No one is railing against its use of corporate wealth to influence a political issue. No one is complaining about Chik-fil-A drowning out other voices in the marriage-equality debate. No one is complaining that Chik-fil-A is abusing state-conferred benefits and power. No one is arguing that, because Chick-fil-A is not a person, it has no constitutional liberty to engage in these activities. No one is arguing that the state could (or should) stop Chik-fil-A from doing this. And no one is suggesting that the First Amendment has nothing to say about this type of corporate activity because it is not speech, only money.

So how do we reconcile this view of Chick-fil-A's activities with the ongoing drumbeat of criticism for Citizens United? The answer, I believe, is that this is not an election, but simply a singular event within the broader everyday public dialogue. Elections are different, uniquely important, and uniquely self-contained ("bounded") as expressive events--and the campaign-finance debate is over what we should do to recognize and acknowledge that uniqueness.

But if so, then Citizens United really is not about corporations v. natural persons, but is instead about campaign financing and the influence of expression by wealthy interests within political campaigns. And, as I argued years ago (and again after Citizens United last year), the argument against corporate speech really uses "corporate" as a proxy for wealthy, although there is no difference in terms of supposed harms (drown-out, corruption, undue influence, etc.) caused by corporate political expenditures as opposed to those by wealthy individuals. If we accept corporate expenditures on expression here, we must accept them in the electoral context--at least to the same extent as individual expenditures on expression.