I argue below that corporations are in fact legal persons. They were recognized as such, with rights of contract, as early as 1819, in Trustees of Dartmouth College v Woodward. If the Court had gone the other way, New Hampshire would have been able to take over Dartmouth College. Imagine George W. taking over Harvard, and you might get the substance of the case. The question, then, is not whether corporations are persons, but what rights of persons they have. The Court thinks free speech is among the rights that corporate bodies have, and I agree.
A second issue in the discussion of Citizens United v. FEC is whether freedom of speech entails the right to spend money in order to exercise that right. Critics of the decision have loudly declared that money isn't speech. Of course this is quite correct. Money isn't speech, and spending is talking. That doesn't mean that limitations on spending cannot be used by government as effective means of abridging freedom of speech. Eugene Volokh makes this point in a recent post:
[A]s I wrote a few years ago, money isn't abortion, either. Nonetheless, a law that banned the spending of money on abortion would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.
Yes. Money isn't religion either. But a law that forbade persons from spending money to build a temple, printing religious literature, or paying the travel expenses for evangelists would surely infringe on the free exercise of religion.
Here, the two questions before us resolve into one. Spending money is a necessary means to exercising certain basic rights. If I wish to express my political opinions in a letter to an editor I may have to buy pen and paper, or perhaps contract with an internet provider. Limitations on my power to spend might easily chill my freedom of speech.
Likewise, forming corporations is one of the means natural persons (individuals) use to express their political opinions and advocate their positions. The National Abortion Rights Action League, and National Right to Life are much more powerful vehicles for advocacy and for petitioning the government than all but the most wealthy individuals would have access to. Limiting corporations and the right of corporations to spend on advocacy clearly can limit individual speech.
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