Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the wake of the death of Chief Justice William Rehnquist, liberals need not solemnly praise his “commitment to the judiciary as an institution” or some other such nonsense. He was obviously not our cup of tea. But there is, in fact, one great opinion about American constitutional democracy that he wrote, in a case called First National Bank of Boston v. Bellotti (1978). We should celebrate the insight he showed there. In Bellotti, Rehnquist, then still an associate justice, found himself dissenting, along with Justice Byron White and his usual nemeses, Justices Thurgood Marshall and William Brennan Jr., from a decision that entrenched the political power of private corporations under the banner of the First Amendment. The Bellotti majority struck down a Massachusetts law making it a crime for business corporations and banks to give campaign contributions or make expenditures to influence the outcome of state referendums and initiatives. The Legislature had passed the law out of frustration with massive corporate spending to defeat initiatives favoring progressive income taxes. The First National Bank sued, claiming that corporations enjoy the same First Amendment right to spend money in politics as citizens. Writing for the majority, Justice Lewis Powell Jr. all but endorsed this brazen argument that corporations have political free-speech rights. “[If] the speakers here were not corporations,” Powell observed, “no one would suggest that the state could silence their proposed speech.” He proceeded to reject the sufficiency of the two interests that Massachusetts invoked for its law — protecting political democracy against corporate power and protecting the rights of dissenting corporate shareholders. There was no proof that the corporate voice in Massachusetts referendums was “overwhelming,” Powell wrote. Then he remarked paradoxically that, even if it were, “the fact that advocacy may persuade the electorate is hardly a reason to suppress it.” On the dissenters’ side, White saw through the claim that corporations should be treated just like politically active citizens. Corporations are “artificial entities” endowed with vast special privileges, like limited liability and perpetual life, in order to foster economic growth. This “special status” has given corporations “vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process.” Massachusetts, White concluded cogently, must be able to regulate corporate spending in politics: “The State need not permit its own creation to consume it.” NOT CITIZENS But even White’s excellent opinion did not approach the lucid rigor with which Rehnquist attacked the majority’s position. While White characterized the state’s insistence on abolishing corporate political influence as an “interest” to be weighed against corporate free-speech rights, Rehnquist saw that the key principle at stake in the case was that corporations are not citizens under our Constitution and, therefore, have no political free-speech rights at all. Indeed, Rehnquist began his analysis by challenging the Supreme Court’s 1886 holding in Santa Clara County v. Southern Pacific Railroad Co. that a business corporation is a “person” for purposes of the equal protection clause of the 14th Amendment. He instead dusted off Chief Justice John Marshall’s statement from 1819 that a “corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it.” Rehnquist was clear that all corporations have a right not to have their property confiscated without due process of law and that newspapers and other media corporations have First Amendment freedoms. But he distinguished these points from the sweeping claim that business corporations have the same rights of political participation and expression as citizens under the Constitution. (One might ask, If businesses have the right to spend money in politics, why not the right to vote or the right to give money directly to candidates as people do?) Rehnquist understood that business corporations could exploit their immense wealth to purchase political power and entrench their advantages. The structural privileges extended to private corporations by states may be “beneficial in the economic sphere,” he wrote, but they clearly “pose special dangers in the political sphere.” Meantime, no political speech was curtailed by Massachusetts law, since all the corporate executives and shareholders could simply spend their own money to get their message out. And so long as courts are available to prevent the unjust taking of corporate property, any valid interests that the corporations have are already being protected. The sharply drawn position that Rehnquist elaborated remains an important rebuke to the pervasive murky doctrine that, for political purposes, corporations are people too. Just last term, in a case that the Supreme Court ended up not deciding, the Nike Corp. — facing a state’s use of consumer fraud statutes to prosecute it for allegedly false statements about its labor policies — asserted that the First Amendment essentially protects a corporation’s right to lie. Although Rehnquist was no friend to voting rights for real people or to the institutions necessary for strong democracy, he was also no fool when it came to aggressive claims about the constitutional rights of corporations. One wonders whether John Roberts Jr., who clerked for Rehnquist, shares any of his mentor’s skepticism about the political free-speech rights of business. We can hope that Roberts does not forget this uniquely precious strand of the Rehnquist legacy.
Jamin B. Raskin is a constitutional law professor at American University Washington College of Law and the director of its Program on Law and Government.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.