Was Citizens United Correct?

[reACTIONary]

64. Thanks, thoughtful questions...

...my notion was to use the charters and I believe you are pretty much correct about most corporate charters being rather vague and permissive. As explained below, there may be a remedy for this defect.

Citizens United was and is (using language derived from the ACLU CU brief) an "ideological advocacy organization" that specializes in documentary movies. IMHO it was simply exercising its rights under the first amendment. I believe that organizations such as the ACLU and Citizens United have a constitutional right to engage in protected speech regardless of the electoral calendar. At least that's my opinion, and that opinion seems to be shared by many DUers, by the ACLU and the SCOTUS itself.

Not all movies and entertainment constitute protected speech, but to the extent that they do, my opinion is that they should be protected from government regulation. So, in my view, Universal Studios and Sony Pictures do have a first amendment right to make such movies. (Keeping in mind that obscenity is not traditionally considered protected speech in and of itself.) In my opinion, if Zero-Dark-Thirty had been released just prior to the election, the FEC should have no business scrutinizing that decision.

One further question is whether or not organizations that engage in protected speech have a constitutional right to organize as corporations enjoying the privilege of limited liability. I'm not sure that they do. This is a privilege granted for the benefit of the public good, and might be withheld in the interest of the general welfare.

My personal view is that "ideological advocacy" organization that would fall under the 501(c)3 category should, as a mater of policy, be granted the privilege of limited liability. I am not so sure about organizations that would not fall under the 501 categories. The value of this privilege might be used as a means of limiting the speech of corporations that are not organized for the purpose of "ideological advocacy". The privilege of tax exemption and of allowing deductions for contributions is limited in this way and a list of the various types is maintained by the IRS. This list, or a similar one, could be used rather than the vague purpose supplied by the corporate charter.

I actually found a similar suggestion in the ACLU's CU amicus brief: the ACLU strongly believes that this Court should hold that the MCFL exception for nonprofit, ideological corporations that do not accept corporate funding should extend to organizations like the ACLU that only accept de minimis funding from sources other than individual donors. Contrary to the position it has taken for years, the government now apparently concedes, or at least acknowledges, that MCFL applies to nonprofit, ideological corporations that are financed “overwhelmingly” by individual donations. The ACLU urges the Court to adopt that interpretation of MCFL, if it does not overrule Austin entirely.

Admittedly, this is a "fall back position" but the ACLU seems to be making the same distinction I was attempting to make, that of an "ideological advocacy" organization, as opposed to other organizations that are focused on more mundane commercial purposes.

Now, the question is, WHY would we want to impose these limitations? The DU posts from those who are advocates of regulation give a variety of reasons, but I propose a FIRST AMENDMENT rational. This wasn't made clear in the OP.

My understanding of the first amendment is that it not only protects the freedom to speak, but also the freedom to REFUSE to speak and to DENY SUPPORT for speech that is contrary to one's own views and opinions. Minority share holders in a corporation that has a purpose other than advocacy may be having their assets used for speech that is contrary to their convictions. They contributed capital for the purpose of, say, building cars, and end up having those assets used to further the election of, who knows, Mitt Romney. In my opinion this is a violation of their first amendment rights and should not be allowed.

This is not, however, true of an "ideological advocacy" organization such as the ACLU or Citizens United. Anyone contributing capital to an organization that manifestly exists for the express purpose of advocating an ideological point of view understands how that contribution will be used, and is exercising free speech; she is not being compelled to support the opinions of others without consent.

Thus I believe that restrictions on the speech of organizations that want the privilege of limited liability can and should be made as a matter of fairness, under the first amendment, to protect those who have contributed capital from having their contribution misused against their personal convictions. And I believe that this can be done without restricting the liberty of those who want the privilege of limited liability in the public interest of advocating an ideological point of view.