Legal Commentary

My first significant scholarly work (a senior-research paper, the writing of which convinced me, three weeks before graduation, I wanted to be an academic), published (as co-author) 12 years ago, argued all the ways that Austin was wrong and thoroughly inconsistent with important free-expression principles. So I was delighted, as a matter of First Amendment principle, that the Court finally dumped this precedent.

Some random thoughts after the jump.

1) I am not surprised the opinion fell to Justice Kennedy. He wrote a vigorous dissent in Austin itself, so there is some degree of vindication to write the opinion burying it. This also is one of the areas in which Kennedy's First Amendment passions come to the surface.

2) This opinion is broader than his Austin dissent. In the prior case, Kennedy seemed to keep his focus on the effect of a corporation-expenditure ban on non-profit corporations (such as the Chamber of Commerce)--it was Justice Scalia (also dissenting) who went on about the expressive rights of GM. He did some of that in Citizens--emphasizing that most corporations are small corporations and talking a great deal about nonprofit associations. But Kennedy more expressly owned that large corporations, many of which had amassed wealth in the market by virtue of the corporate form, would be able to spend money on speech. He (rightly so, in my view) did not believe it made a difference. He spoke of the potential effects of bans on (for-profit) media companies and the incoherence of a carve-out. And he spoke of corporate democracy as the response to the shareholder-protection argument. And he expressly and strongly rejected the equality/leveling argument that really is what Austin was about (although Austin called it corruption-by-distortion).

3) I am not necessarily bothered by the majority seemingly reaching out to overrule Austin. Of course, I am not a judicial minimalist and do not pretend to be one. And I never have entirely believed that Chief Justice Roberts is one, either. Kennedy did play a bit loose with some of the possible statutory arguments, particularly in treating a 90-minute historical documentary as the functional equivalent of express advocacy for or against a candidate. But the movie does contain enough voice-overs and commentary linking Clinton's past to the specific point of her qualification to be President that calling this a "feature-length negative advertisement" is accurate. I do see the merits to the argument made that the statutory arguments here would have been no less strained than the arguments in last term's Voting Rights Act case.

4) One part of the opinion that might have broad effect is the strong language Kennedy uses to establish the premise that restricting expression because of speaker identity (in this case, corporations) is as constitutionally problematic as restricting expression because of what was said. This has been implicit in many cases, but Kennedy makes explicit (I think for the first time, since he does not cite anything for the proposition) that "restrictions based on the identity of the speaker are all too often simply a means to control content" and the "First Amendment protects speech and speaker, and the ideas that flow from each." Underlying this is the necessary conclusion that the identity of the speaker affects the message, that content of speech takes into account speaker--the speech of a corporate PAC is not the speech of the corporation; and restricting the speech of only one raises First Amendment problems, the message of each is different.

5) Matt makes a few important points on the labor/corporations side of things that I want to latch on to.

5a) First, I found interesting Fisch's argument that corporate political activity is an important part of business activity. I had considered (but ultimately did not make) the argument that the so-called corporate social-responsibility movement should have opened the door to acceptance of broader corporate speech. After all, if we demand that corporations behave in a socially responsible way, corporations should have the liberty to engage in public debate and thus to influence what we mean by social responsibility. But the connection between corporate political speech and corporate business always has seemed obvious to me.

5b) We made the shareholder-control argument in the article. I think the notion of shareholders stepping forward in advance may allow them to wield more power than Justice Stevens suggests they can.

5c) Matt predicts that corporations seen as more ideological may run into some shareholder problems, while corporations that play both sides, quietly, will not. But I wonder whether we also will see some corporations become even more explicitly ideological in their expression, specifically to attract shareholders (not just customers) who share and want to support that ideology and speech in support of that ideology.

5c) The union situation could be interesting. Matt argues that unions benefit from engaging in political speech, just as corporations do. And today's decision frees unions, as much as businesses and the Chamber of Commerce, to spend general funds for electioneering speech, without having to funnel through a PAC. But one anomaly remains that makes corporations free in a way that unions are not. Union dues-payers (and maybe even some union members--I'm not sure) still possess their own First Amendment rights to opt-out of having their dues fund certain not-germaine-to-union-purpose expression, a constitutional right not enjoyed by corporate shareholders (who are not compelled to invest). Thus, as a practical matter, unions still must maintain segregated funds for certain expression, while corporations can run everything through the general treasury. At the very least, unions must create mechanisms for opt-outs, decreasing the money they can collect and use. I wonder if Congress or a state might level the playing field by giving shareholders similar opt-out rights as those enjoyed by union dues-payers and members.