It is a myth prevalent among liberals that the Supreme Court defined corporations as persons in Citizens United. Instead, the court observed that corporations are associations, cited previous rulings that associations have freedom of speech and that freedom of speech includes spending money on elections, and concluded that corporations may spend money on elections. I disagree with the decision and I blame a neoliberal (pro-corporate, anti-regulatory) ideology for it … in part. But Citizens United also reflects the limitations of the Constitution itself. At best, we can say that the Constitution offers scant protection against such rulings and the ideology that they reflect.
Written in the eighteenth century, the Constitution envisions certain political institutions: parliamentary bodies, courts, a president, an Army and a Navy, militias, a mint, ambassadors, ministers, and departments. The First Amendment adds a few more entities: religions, the press, peaceable assemblies of citizens, and–by implication–petitioners who press their claims before the government. The authors also knew about certain political institutions and actors that they associated with European corruption and hoped to avoid in the new republic: parties, spies, and lobbyists (although that word was not yet coined).
The authors could not envision other essential components of a modern political system, such as limited liability corporations and corporations (in general) that don’t have specific charters, administrative and rulemaking agencies, unions, trade associations, schools and colleges, and security agencies. Since the Constitution is silent on all these organizations, courts have no way to distinguish among them.
For instance, the 2.6 million mostly unionized career civil servants who work in federal agencies get treated as employees of the president, as “inferior officers,” whose appointment may be vested by Congress “in the President alone.” In fact, they enjoy a great deal of autonomy and permanence and are busy making laws in the form of administrative decisions and rules, even though the Constitution assigns “all legislative powers” to the Congress. They should have their own article of the Constitution, defining and limiting their powers as if they were a fourth branch of government.
Likewise, security agencies are permanent paramilitary organizations with the power to spy and to kill, but they are not the Army or Navy of which the president is the Commander-in-Chief in times of war–alone. So should they answer to the president, the Congress, or (as we fear is actually the case) only to themselves? Courts treat them as arms of the president even though presidents may fear them.
Finally, the Constitution makes no distinction among types of association (a word that doesn’t even appear in the text). An association can be a bunch of people who peacefully assemble, a membership group with an elected president, or a company that trades on the NASDAQ. In the 1700s, corporations were perhaps the easiest associations to regulate because each one came into existence through a discretionary decision by the legislature, giving it a charter that strictly delimited its purposes and powers. Today, corporations are exceptionally hard to regulate because they are traded globally and they have the power to withdraw the investments on which prosperity depends.
It is now a virtual consensus that the constitutional freedoms of speech and assembly depend upon associations. A classic case is NAACP v Alabama. Almost everyone would say that the NAACP has constitutional rights as a body, or else its members would not be able to speak, assemble, or petition the government. But note that the National Association for the Advancement of Colored People is, in fact, a corporation–incorporated on May 25, 1911 under the laws of the State of New York, with W.E.B. DuBois as the first signatory on its Articles of Incorporation. If it has free speech rights, why don’t the NCAA and Nokia?
I can offer reasons why for-profit corporations should not, in fact, have the same rights of speech and petition that not-for-profit membership organizations enjoy, even though both kinds of organizations are incorporated. My reasons would arise from a political sociology that specifies the functions, advantages, and dangers of various kinds of organization that exist in the 21st century. The problem is that our written Constitution has a political sociology appropriate for 1789. Our judges and justices could still decide more wisely than they did in Citizens United. But the Constitution offers no guidance or protection if they are unwilling to make the necessary distinctions.