Essential speech: Why corporate speech is not free

Iowa Law Review

Volumn 83, Issue 5, 1998, Pages 995-1070

  Greenwood, Daniel J H ^a,b,c  

^a UNIVERSITY OF UTAH   (United States)

^b HARVARD COLLEGE   (United States)

^c YALE UNIVERSITY   (United States)

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EID: 0005259115     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (261)

1. On political idolatry - treating the instruments of politics as ends in themselves rather than as mere tools - see generally Moshe Halbertal & Avishai Margalit, Idolatry 214-36 (Naomi Goldblum trans., 1992); Michael Walzer, Exodus and Revolution, 108-09, 124-29 (1985) (describing the antimonarchal tradition in the Exodus stories); Deuteronomy 13:5, 17:16-19; 1 Samuel 8:7 (limiting instruments of politics on ground that anything else is a rejection of true religion). But see J. David Bleich, Jewish Law and the State's Authority to Punish Crime, 12 Cardozo L. Rev. 829, 831-33 (1991) (detailing some traditional Jewish authorities' re-understanding of Samuel's antimonarchy dictum as in fact an endorsement of monarchy).
2. On political idolatry - treating the instruments of politics as ends in themselves rather than as mere tools - see generally Moshe Halbertal & Avishai Margalit, Idolatry 214-36 (Naomi Goldblum trans., 1992); Michael Walzer, Exodus and Revolution, 108-09, 124-29 (1985) (describing the antimonarchal tradition in the Exodus stories); Deuteronomy 13:5, 17:16-19; 1 Samuel 8:7 (limiting instruments of politics on ground that anything else is a rejection of true religion). But see J. David Bleich, Jewish Law and the State's Authority to Punish Crime, 12 Cardozo L. Rev. 829, 831-33 (1991) (detailing some traditional Jewish authorities' re-understanding of Samuel's antimonarchy dictum as in fact an endorsement of monarchy).
3. On political idolatry - treating the instruments of politics as ends in themselves rather than as mere tools - see generally Moshe Halbertal & Avishai Margalit, Idolatry 214-36 (Naomi Goldblum trans., 1992); Michael Walzer, Exodus and Revolution, 108-09, 124-29 (1985) (describing the antimonarchal tradition in the Exodus stories); Deuteronomy 13:5, 17:16-19; 1 Samuel 8:7 (limiting instruments of politics on ground that anything else is a rejection of true religion). But see J. David Bleich, Jewish Law and the State's Authority to Punish Crime, 12 Cardozo L. Rev. 829, 831-33 (1991) (detailing some traditional Jewish authorities' re-understanding of Samuel's antimonarchy dictum as in fact an endorsement of monarchy).
4. Immanuel Kant, Groundwork of the Metaphysics of Morals 95 (H.J. Paton trans., Harper & Row 1964) (1786). A person is an end in itself. A political object or tool, in contrast, is merely a means to some other end. In our Constitution, this ideal is expressed most cogently in the Titles of Nobility Clauses. U.S. Const. art. I, § 9, cl.8; § 10, cl.1 (establishing principle that members of government are servants of the people).
5. 1 Adam Smith, The Wealth of Nations 456 (W.B. Todd ed., Oxford Univ. Press 1979) (1776) (stating that in a market economy, an individual while intending only his own gain is "led by an invisible hand to promote an end [the public interest] which was no part of his intention"). Although Smith himself was no advocate of unrestrained markets, 2 Smith, supra, at 782 (contending that in every civilized society labor will become "as stupid and ignorant as it is possible for a human creature to become" and advocating government "take[] some pains to prevent" this "necessar[y]" result of the division of labor in a market society), his aphorism has become associated with a view that markets themselves will guide the private pursuit of profit towards the public good. At least since the New Deal, however, we have relied on an extensive regulatory apparatus to assure that the pursuit of profit is socially useful. While the Keynesian thesis that markets do not aggregate to a satisfactory equilibrium is out of fashion, even strong proponents of market-centrism usually acknowledge that markets must be guided to mitigate the problems of monopoly, see, e.g., Sherman Antitrust Act, 15 U.S.C. §§ 1-7 (1994); externalities, National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331-4347 (1994); invidious discrimination, Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000h-6 (1994); and imperfect information, Securities Exchange Act of 1934, 15 U.S.C. § 78 (1994); see also, e.g., Charles Dickens, Hard Times (Paul Schlicke ed., Oxford Univ. Press 1989) (1854) (describing Choketown); Charles Dickens, Oliver Twist (Peter Fairclough ed., Penguin 1966) (1838) (describing life in London); Robert Kuttner, Everything for Sale (1997) (describing limits of markets as allocation device).
6. 1 Adam Smith, The Wealth of Nations 456 (W.B. Todd ed., Oxford Univ. Press 1979) (1776) (stating that in a market economy, an individual while intending only his own gain is "led by an invisible hand to promote an end [the public interest] which was no part of his intention"). Although Smith himself was no advocate of unrestrained markets, 2 Smith, supra, at 782 (contending that in every civilized society labor will become "as stupid and ignorant as it is possible for a human creature to become" and advocating government "take[] some pains to prevent" this "necessar[y]" result of the division of labor in a market society), his aphorism has become associated with a view that markets themselves will guide the private pursuit of profit towards the public good. At least since the New Deal, however, we have relied on an extensive regulatory apparatus to assure that the pursuit of profit is socially useful. While the Keynesian thesis that markets do not aggregate to a satisfactory equilibrium is out of fashion, even strong proponents of market-centrism usually acknowledge that markets must be guided to mitigate the problems of monopoly, see, e.g., Sherman Antitrust Act, 15 U.S.C. §§ 1-7 (1994); externalities, National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331-4347 (1994); invidious discrimination, Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000h-6 (1994); and imperfect information, Securities Exchange Act of 1934, 15 U.S.C. § 78 (1994); see also, e.g., Charles Dickens, Hard Times (Paul Schlicke ed., Oxford Univ. Press 1989) (1854) (describing Choketown); Charles Dickens, Oliver Twist (Peter Fairclough ed., Penguin 1966) (1838) (describing life in London); Robert Kuttner, Everything for Sale (1997) (describing limits of markets as allocation device).
7. 1 Adam Smith, The Wealth of Nations 456 (W.B. Todd ed., Oxford Univ. Press 1979) (1776) (stating that in a market economy, an individual while intending only his own gain is "led by an invisible hand to promote an end [the public interest] which was no part of his intention"). Although Smith himself was no advocate of unrestrained markets, 2 Smith, supra, at 782 (contending that in every civilized society labor will become "as stupid and ignorant as it is possible for a human creature to become" and advocating government "take[] some pains to prevent" this "necessar[y]" result of the division of labor in a market society), his aphorism has become associated with a view that markets themselves will guide the private pursuit of profit towards the public good. At least since the New Deal, however, we have relied on an extensive regulatory apparatus to assure that the pursuit of profit is socially useful. While the Keynesian thesis that markets do not aggregate to a satisfactory equilibrium is out of fashion, even strong proponents of market-centrism usually acknowledge that markets must be guided to mitigate the problems of monopoly, see, e.g., Sherman Antitrust Act, 15 U.S.C. §§ 1-7 (1994); externalities, National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331-4347 (1994); invidious discrimination, Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000h-6 (1994); and imperfect information, Securities Exchange Act of 1934, 15 U.S.C. § 78 (1994); see also, e.g., Charles Dickens, Hard Times (Paul Schlicke ed., Oxford Univ. Press 1989) (1854) (describing Choketown); Charles Dickens, Oliver Twist (Peter Fairclough ed., Penguin 1966) (1838) (describing life in London); Robert Kuttner, Everything for Sale (1997) (describing limits of markets as allocation device).
8. 1 Adam Smith, The Wealth of Nations 456 (W.B. Todd ed., Oxford Univ. Press 1979) (1776) (stating that in a market economy, an individual while intending only his own gain is "led by an invisible hand to promote an end [the public interest] which was no part of his intention"). Although Smith himself was no advocate of unrestrained markets, 2 Smith, supra, at 782 (contending that in every civilized society labor will become "as stupid and ignorant as it is possible for a human creature to become" and advocating government "take[] some pains to prevent" this "necessar[y]" result of the division of labor in a market society), his aphorism has become associated with a view that markets themselves will guide the private pursuit of profit towards the public good. At least since the New Deal, however, we have relied on an extensive regulatory apparatus to assure that the pursuit of profit is socially useful. While the Keynesian thesis that markets do not aggregate to a satisfactory equilibrium is out of fashion, even strong proponents of market-centrism usually acknowledge that markets must be guided to mitigate the problems of monopoly, see, e.g., Sherman Antitrust Act, 15 U.S.C. §§ 1-7 (1994); externalities, National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331-4347 (1994); invidious discrimination, Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000h-6 (1994); and imperfect information, Securities Exchange Act of 1934, 15 U.S.C. § 78 (1994); see also, e.g., Charles Dickens, Hard Times (Paul Schlicke ed., Oxford Univ. Press 1989) (1854) (describing Choketown); Charles Dickens, Oliver Twist (Peter Fairclough ed., Penguin 1966) (1838) (describing life in London); Robert Kuttner, Everything for Sale (1997) (describing limits of markets as allocation device).
9. See Michael Walzer, Spheres of Justice 95-103, 282-84, 291-303 (1983) (describing need to limit money and other forms of power to their proper spheres).
10. Dwight D. Eisenhower, Farewell Broadcast (Jan. 17, 1961), in The Oxford Dictionary of Political Quotations, at 129 (Anthony Jay ed., 1996) (warning of the "potential for the disastrous rise of misplaced power" in the military complex, and of the potential that public policy will be "captured" by a technological elite).
11. See infra note 121 (discussing possibility of consistency in morality).
12. See Walzer, supra note 4, at 310 (describing politics as an ongoing argument in which every citizen is a potential participant).
13. See Meyers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (arguing that the distribution of governmental powers was adopted to "preclude the exercise of arbitrary power" by causing "inevitable friction"); 2 Alexis De Tocqueville, Democracy in America 109-13 (J.D. Mayer & Max Lerner eds., George Lawrence trans., Harper & Row 1945) (1835) (remarking on multiple political and other associations in America as a support for liberty); The Federalist No. 47 (James Madison) (advocating division of powers as a remedy for tyranny of the majority).
14. See Andrew S. McFarland, Interest Groups and the Policymaking Process, in The Politics of Interest 58 (Mark Petracca ed., 1992) (surveying recent theoretical developments in the study of interest groups); see generally John Kenneth Galbraith, The Affluent Society (4th ed. 1984); John Kenneth Galbraith, American Capitalism: The Concept of Countervailing Power (1956).
15. See Andrew S. McFarland, Interest Groups and the Policymaking Process, in The Politics of Interest 58 (Mark Petracca ed., 1992) (surveying recent theoretical developments in the study of interest groups); see generally John Kenneth Galbraith, The Affluent Society (4th ed. 1984); John Kenneth Galbraith, American Capitalism: The Concept of Countervailing Power (1956).
16. See Andrew S. McFarland, Interest Groups and the Policymaking Process, in The Politics of Interest 58 (Mark Petracca ed., 1992) (surveying recent theoretical developments in the study of interest groups); see generally John Kenneth Galbraith, The Affluent Society (4th ed. 1984); John Kenneth Galbraith, American Capitalism: The Concept of Countervailing Power (1956).
17. See generally Hannah Arendt, Origins of Totalitarianism 308-15 (Harvest 1973) (1951); De Tocqueville, supra note 8, at 254-88 (discussing problem of tyranny of majority); Gustave Le Bon, The Crowd: A Study of the Popular Mind 35-59 (Viking Press 1960) (1896); Jose Ortega y Gasset, The Revolt of the Masses 18-19, 53, 84, 133 (Kenneth Moore ed., Anthony Kerrigan trans., Univ. of Notre Dame Press 1985) (1930) ("Anybody who is not like everybody [the mass] runs the risk of being eliminated.").
18. See generally Hannah Arendt, Origins of Totalitarianism 308-15 (Harvest 1973) (1951); De Tocqueville, supra note 8, at 254-88 (discussing problem of tyranny of majority); Gustave Le Bon, The Crowd: A Study of the Popular Mind 35-59 (Viking Press 1960) (1896); Jose Ortega y Gasset, The Revolt of the Masses 18-19, 53, 84, 133 (Kenneth Moore ed., Anthony Kerrigan trans., Univ. of Notre Dame Press 1985) (1930) ("Anybody who is not like everybody [the mass] runs the risk of being eliminated.").
19. See generally Hannah Arendt, Origins of Totalitarianism 308-15 (Harvest 1973) (1951); De Tocqueville, supra note 8, at 254-88 (discussing problem of tyranny of majority); Gustave Le Bon, The Crowd: A Study of the Popular Mind 35-59 (Viking Press 1960) (1896); Jose Ortega y Gasset, The Revolt of the Masses 18-19, 53, 84, 133 (Kenneth Moore ed., Anthony Kerrigan trans., Univ. of Notre Dame Press 1985) (1930) ("Anybody who is not like everybody [the mass] runs the risk of being eliminated.").
20. See The Federalist Nos. 10, 51 (James Madison) (describing use of differing jurisdictions to lessen the probability of oppression by the majority).
21. See NAACP v. Button, 371 U.S. 415, 430-31 (1963) (emphasizing importance of organization in advocating rights of its members); see also 2 De Tocqueville, supra note 8, at 109-13 (discussing importance of intermediate institutions); Alexander Meiklejohn, Free Speech and its Relation to Self-Government 22-27 (1948) (stating that the First Amendment protects against "mutilation of the thinking process of the community" that would be destructive of democratic self-rule); id. at 39 (distinguishing between private liberty of speech, which may be abridged, and freedom of public discussion, which may not).
22. The two-sided fear that government is, on the one hand, likely to succumb to a "faction of the majority" and, on the other, likely to be captured by corrupt governors without the public interest in mind, has deep roots in American constitutional theory. See, e.g., The Federalist No. 9 (Alexander Hamilton) (describing fear of corruption); No. 10 (James Madison) (describing fear of faction and of representatives of "sinister designs"); No. 51 (James Madison) (describing multiple constituencies as a remedy to both problems). The distinction between government and civil society is similarly deep rooted. For a discussion, see, for example, Charles Taylor, Invoking Civil Society, in Philosophical Arguments 213, 222-23 (1995).
23. See generally Kuttner, supra note 3, at 225-80 (surveying several regulated industries and the deregulation movement of the 1980s and 1990s); Mark J. Roe, Strong Managers, Weak Owners (1994); Daniel J.H. Greenwood, Fictional Shareholders: For Whom Are Corporate Managers Trustees, Revisited, 69 S. Cal. L. Rev. 1021, 1029 n.13 (1996); Mark J. Roe, Political Theory of American Corporate Finance, 91 Colum. L. Rev. 10 (1991) (surveying political opposition to large corporations and financial markets as a defining feature of current law and corporate governance structure).
24. See generally Kuttner, supra note 3, at 225-80 (surveying several regulated industries and the deregulation movement of the 1980s and 1990s); Mark J. Roe, Strong Managers, Weak Owners (1994); Daniel J.H. Greenwood, Fictional Shareholders: For Whom Are Corporate Managers Trustees, Revisited, 69 S. Cal. L. Rev. 1021, 1029 n.13 (1996); Mark J. Roe, Political Theory of American Corporate Finance, 91 Colum. L. Rev. 10 (1991) (surveying political opposition to large corporations and financial markets as a defining feature of current law and corporate governance structure).
25. See generally Kuttner, supra note 3, at 225-80 (surveying several regulated industries and the deregulation movement of the 1980s and 1990s); Mark J. Roe, Strong Managers, Weak Owners (1994); Daniel J.H. Greenwood, Fictional Shareholders: For Whom Are Corporate Managers Trustees, Revisited, 69 S. Cal. L. Rev. 1021, 1029 n.13 (1996); Mark J. Roe, Political Theory of American Corporate Finance, 91 Colum. L. Rev. 10 (1991) (surveying political opposition to large corporations and financial markets as a defining feature of current law and corporate governance structure).
26. The relative subsidization of small businesses, variously defined, is a ubiquitous feature of American law and practice. For example, by organizing as S-corporations or limited liability companies and assuring that significant assets are encumbered, small businesses may avoid both the corporate income tax, tort obligations and generally obligations to unsecured creditors. See Greenwood, supra note 14, at 1075 n.111 (discussing Walkovsky v. Carlton, 287 N.Y.S.2d 546 (App. Div. 1968)); cf. Lynn LoPucki, Death of Liability, 106 Yale L.J. 1 (arguing that larger firms as well are increasingly able to render themselves asset-free). Similarly, small enterprises are exempt from many regulatory regimes, including, for example, the ADA. They may also often be able to free-load on publicly provided services that larger firms would have to internalize - for example, by using bankruptcy courts as a substitute for internal reallocation of capital from failed projects. Thus, while a large oil company pays the cost of shifting drilling equipment and teams from a dry well to a new opportunity, wildcatters substitute publicly provided bankruptcy courts. See, e.g., Ronald Coase, The Nature of the Firm, reprinted in The Nature of the Firm 20-21 (Oliver E. Williamson & Sidney G. Winter eds., 1991) (contending that firms exist to reduce transaction costs relative to markets, mainly by superseding price mechanism). Furthermore, social mores make it more acceptable for a small enterprise to fail to provide basic fringe benefits, including pension plans and medical insurance, that large firms must provide in order to retain employees: employees who are aware they are working for a marginal enterprise can be persuaded to work for pay and benefits they would refuse from a more solid one, or to accept breaches of implicit contracts that would cause massive morale problems or defections under other circumstances. This difference in employee attitudes, no doubt, accounts for at least part of the popularity of financing devices such as the leveraged buy-out that have the perceived effect of converting a solid enterprise into one at imminent risk of self-destruction without any change in product or internal organization: it is far easier to obtain employee concessions when the enterprise is on the edge of bankruptcy. Similarly, much of the cost-effectiveness of "out-sourcing" (moving parts of the functional firm into a separate formal/legal corporation) results from the greater willingness of employees and regulators to make concessions to small firms, even when they are not perceived to be in imminent financial trouble.
27. The relative subsidization of small businesses, variously defined, is a ubiquitous feature of American law and practice. For example, by organizing as S-corporations or limited liability companies and assuring that significant assets are encumbered, small businesses may avoid both the corporate income tax, tort obligations and generally obligations to unsecured creditors. See Greenwood, supra note 14, at 1075 n.111 (discussing Walkovsky v. Carlton, 287 N.Y.S.2d 546 (App. Div. 1968)); cf. Lynn LoPucki, Death of Liability, 106 Yale L.J. 1 (arguing that larger firms as well are increasingly able to render themselves asset-free). Similarly, small enterprises are exempt from many regulatory regimes, including, for example, the ADA. They may also often be able to free-load on publicly provided services that larger firms would have to internalize - for example, by using bankruptcy courts as a substitute for internal reallocation of capital from failed projects. Thus, while a large oil company pays the cost of shifting drilling equipment and teams from a dry well to a new opportunity, wildcatters substitute publicly provided bankruptcy courts. See, e.g., Ronald Coase, The Nature of the Firm, reprinted in The Nature of the Firm 20-21 (Oliver E. Williamson & Sidney G. Winter eds., 1991) (contending that firms exist to reduce transaction costs relative to markets, mainly by superseding price mechanism). Furthermore, social mores make it more acceptable for a small enterprise to fail to provide basic fringe benefits, including pension plans and medical insurance, that large firms must provide in order to retain employees: employees who are aware they are working for a marginal enterprise can be persuaded to work for pay and benefits they would refuse from a more solid one, or to accept breaches of implicit contracts that would cause massive morale problems or defections under other circumstances. This difference in employee attitudes, no doubt, accounts for at least part of the popularity of financing devices such as the leveraged buy-out that have the perceived effect of converting a solid enterprise into one at imminent risk of self-destruction without any change in product or internal organization: it is far easier to obtain employee concessions when the enterprise is on the edge of bankruptcy. Similarly, much of the cost-effectiveness of "out-sourcing" (moving parts of the functional firm into a separate formal/legal corporation) results from the greater willingness of employees and regulators to make concessions to small firms, even when they are not perceived to be in imminent financial trouble.
28. See infra Part II.A.1 (discussing application of the state and private actor distinction to corporations).
29. See, e.g., John Kenneth Galbraith, The New Industrial State, 208-10, 345-48 (1967) (discussing corporate attempts to manage demand and resulting effects on state programs); see generally Thorstein Veblen, Theory of the Leisure Class (1979) (discussing consumption as a socially constructed drive to emulation and competition); id. at 35-37 (stating that consumption is driven by the "invidious distinction attaching to wealth"); id. at 74, 90 (arguing that public giving and private consumption are alternative ways of conspicuous demonstration of wealth). In a world of finite resources, it is in any event evident that any successful advertising increasing demand for private consumption necessarily affects demand for the public-consumption goods of politics.
30. See, e.g., John Kenneth Galbraith, The New Industrial State, 208-10, 345-48 (1967) (discussing corporate attempts to manage demand and resulting effects on state programs); see generally Thorstein Veblen, Theory of the Leisure Class (1979) (discussing consumption as a socially constructed drive to emulation and competition); id. at 35-37 (stating that consumption is driven by the "invidious distinction attaching to wealth"); id. at 74, 90 (arguing that public giving and private consumption are alternative ways of conspicuous demonstration of wealth). In a world of finite resources, it is in any event evident that any successful advertising increasing demand for private consumption necessarily affects demand for the public-consumption goods of politics.
31. Here, I intend to reject the notion that there exists a "universal means" to every end, and specifically the notion that increased wealth makes everyone better off regardless of their goals or aims. See infra note 112. For further discussion, see Daniel Greenwood, Desires and Politics (June, 1979) (unpublished essay, on file with author).
32. While constitutional adjudication has centered on direct corporate intervention in political campaigns, e.g., referenda and candidate contributions, the far larger and surely more influential aspect of corporate political speech is lobbying, in its broadest sense. This sort of lobbying includes various types of advertising. Corporations engage in significant explicitly political editorializing, along the lines of Mobil Oil's New York Times oped page advertisements. David Shelledy, Autonomy, Debate and Corporate Speech, 18 Hastings Const. L.Q. 541, 541 (1981) (citing estimate that corporations spent $1 billion per year on editorial advertising in late 1970s). Beyond obviously political speech, much product or image advertising is also designed to affect, directly or indirectly, the political views of citizens in directions useful to the corporate bottom line. Cigarette advertising, for example, necessarily promotes not only a particular brand of cigarettes but also the fundamentally political position that cigarettes should be supplied by the market rather than banned by law. Thus, Philip Morris's $1.6 million soft money donation to the Republicans and $.4 million to the Democrats in the last election cycle, Soft Money, Big Stakes, Newsweek, Oct. 28, 1996, at 31, is dwarfed by its far larger and ultimately perhaps more important commercial advertising and lobbying expenses. See e.g., Jeffrey Birnbaum, The Lobbyists, The Economist, Feb. 8, 1997, at 23 (stating that 10 U.S. corporations had advertising budgets exceeding $1 billion each). Accordingly, I do not rely on a notion that corporate speech is automatically lesser-valued commercial speech. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (invalidating ban on liquor advertising); Virginia State Bd. of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748, 762-65 (1976) (deconstructing First Amendment distinction between commercial and political speech in order to bar economic regulation of pharmaceutical advertising); Bigelow v. Virginia, 421 U.S. 809 (1975) (protecting paid advertisement for abortion clinic). Too much core speech is excluded by the commercial speech test. See infra pp. 1058-59 (distinguishing between for-profit speech and corporate speech). But see Carl E. Schneider, Free Speech and Corporate Freedom, 59 S. Cal. L. Rev. 1227, 1259 (1986) (suggesting that corporate speech is always commercial speech because it is motivated by pursuit of profit);
33. While constitutional adjudication has centered on direct corporate intervention in political campaigns, e.g., referenda and candidate contributions, the far larger and surely more influential aspect of corporate political speech is lobbying, in its broadest sense. This sort of lobbying includes various types of advertising. Corporations engage in significant explicitly political editorializing, along the lines of Mobil Oil's New York Times oped page advertisements. David Shelledy, Autonomy, Debate and Corporate Speech, 18 Hastings Const. L.Q. 541, 541 (1981) (citing estimate that corporations spent $1 billion per year on editorial advertising in late 1970s). Beyond obviously political speech, much product or image advertising is also designed to affect, directly or indirectly, the political views of citizens in directions useful to the corporate bottom line. Cigarette advertising, for example, necessarily promotes not only a particular brand of cigarettes but also the fundamentally political position that cigarettes should be supplied by the market rather than banned by law. Thus, Philip Morris's $1.6 million soft money donation to the Republicans and $.4 million to the Democrats in the last election cycle, Soft Money, Big Stakes, Newsweek, Oct. 28, 1996, at 31, is dwarfed by its far larger and ultimately perhaps more important commercial advertising and lobbying expenses. See e.g., Jeffrey Birnbaum, The Lobbyists, The Economist, Feb. 8, 1997, at 23 (stating that 10 U.S. corporations had advertising budgets exceeding $1 billion each). Accordingly, I do not rely on a notion that corporate speech is automatically lesser-valued commercial speech. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (invalidating ban on liquor advertising); Virginia State Bd. of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748, 762-65 (1976) (deconstructing First Amendment distinction between commercial and political speech in order to bar economic regulation of pharmaceutical advertising); Bigelow v. Virginia, 421 U.S. 809 (1975) (protecting paid advertisement for abortion clinic). Too much core speech is excluded by the commercial speech test. See infra pp. 1058-59 (distinguishing between for-profit speech and corporate speech). But see Carl E. Schneider, Free Speech and Corporate Freedom, 59 S. Cal. L. Rev. 1227, 1259 (1986) (suggesting that corporate speech is always commercial speech because it is motivated by pursuit of profit);
34. While constitutional adjudication has centered on direct corporate intervention in political campaigns, e.g., referenda and candidate contributions, the far larger and surely more influential aspect of corporate political speech is lobbying, in its broadest sense. This sort of lobbying includes various types of advertising. Corporations engage in significant explicitly political editorializing, along the lines of Mobil Oil's New York Times oped page advertisements. David Shelledy, Autonomy, Debate and Corporate Speech, 18 Hastings Const. L.Q. 541, 541 (1981) (citing estimate that corporations spent $1 billion per year on editorial advertising in late 1970s). Beyond obviously political speech, much product or image advertising is also designed to affect, directly or indirectly, the political views of citizens in directions useful to the corporate bottom line. Cigarette advertising, for example, necessarily promotes not only a particular brand of cigarettes but also the fundamentally political position that cigarettes should be supplied by the market rather than banned by law. Thus, Philip Morris's $1.6 million soft money donation to the Republicans and $.4 million to the Democrats in the last election cycle, Soft Money, Big Stakes, Newsweek, Oct. 28, 1996, at 31, is dwarfed by its far larger and ultimately perhaps more important commercial advertising and lobbying expenses. See e.g., Jeffrey Birnbaum, The Lobbyists, The Economist, Feb. 8, 1997, at 23 (stating that 10 U.S. corporations had advertising budgets exceeding $1 billion each). Accordingly, I do not rely on a notion that corporate speech is automatically lesser-valued commercial speech. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (invalidating ban on liquor advertising); Virginia State Bd. of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748, 762-65 (1976) (deconstructing First Amendment distinction between commercial and political speech in order to bar economic regulation of pharmaceutical advertising); Bigelow v. Virginia, 421 U.S. 809 (1975) (protecting paid advertisement for abortion clinic). Too much core speech is excluded by the commercial speech test. See infra pp. 1058-59 (distinguishing between for-profit speech and corporate speech). But see Carl E. Schneider, Free Speech and Corporate Freedom, 59 S. Cal. L. Rev. 1227, 1259 (1986) (suggesting that corporate speech is always commercial speech because it is motivated by pursuit of profit);
35. Note, The Corporation and the Constitution: Economic Due Process and Corporate Speech, 90 Yale L.J. 1833 (1981) (criticizing First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978), as a revival of Lochnerian due process jurisprudence). Paradoxically, the leading corporate speech case, First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978), defends extending First Amendment rights to corporations, in part, by claiming that corporate-funded speech is unimportant. Id. at 789 ("There has been no showing that the relative voice of corporations has been . . . even significant in influencing referenda."). Were there convincing evidence that the enormous sums spent by corporations to influence others had no effect, surely the proper response would be to seek to discover which legal and market structures created such a monumental waste and then to regulate them out of existence. To constitutionally protect allegedly wasteful expenditure of billions of dollars seems perverse, at best. For purposes of this Article, I will assume that much commercial corporate speech is both political and important.
36. See generally Greenwood, supra note 14 (arguing that corporations are controlled by agents acting on behalf of a one-sided legal fiction, not a collection of human beings).
37. See infra note 37 and accompanying text (discussing Bank of the United States v. Deveaux, 9 U.S. (5 Cranch) 61 (1809)). 22. 435 U.S. 765 (1978).
38. In Bellotti, the Court explicitly rejected any fear of corruption in referenda. Id. at 790.
39. 424 U.S. 1, 20-22 (1976).
40. Id. at 45.
41. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); cf. Federal Election Campaigns Act, 2 U.S.C. § 441(b) (1998) (barring corporate campaign contributions and expenditures). Since most large accumulations of private wealth in this country surely originated as corporate wealth, the Court's distinction seems analytically insufficient. This Article contends that corporate wealth is different from private wealth not because its accumulation was more state supported, but because state corporate law determines the ends to which it will be used. In contrast, the use of private wealth, however accumulated, is subject to the idiosyncratic whims of its private owners. Thus, while the private fortunes of Mr. Perot and Mr. Forbes are surely no more or less the result of state aid than the corporate fortunes from which their private fortunes derive, Mr. Perot and Mr. Forbes, unlike the boards of directors of the respective corporations, may spend their fortunes in any way they wish without regard for state law fiduciary duties to fictional shareholders and legally determined markets that enforce those duties. Citizen-owned assets may be derived from corporations without raising the concerns central to this Article. The issue raised here is not whether private wealth distorts the political process or is derived from governmentally created privilege (although surely much is and it is hard to imagine any private wealth without, at a minimum, governmental enforcement of its existence). Rather, the problem is whether the legal system permits the decision-maker in charge of those assets to exercise his or her faculties as a citizen. (Because PACs are not bound by the state-law fiduciary obligations that govern business organizations, they require separate analysis.) In a republican democracy in which citizens, not the organizations they create to govern or enrich themselves, are the ultimate source of the law, the distinctive voice of corporations is not a justification for granting such corporations rights against citizens.
42. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
43. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
44. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
45. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
46. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
47. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
48. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
49. For discussions of the constitutional history of corporate law, see generally Morton Horwitz, Transformation of American Law 1780-1860 at 63-108 (1977); Schneider, supra note 19, at 1253. For surveys of corporate rights under the Constitution and corporate personality theory generally, see William W. Bratton, The New Economic Theory of the Firm: Critical Perspectives from History, 41 Stan. L. Rev. 1471 (1989); Howard Jay Graham, An Innocent Abroad: The Constitutional Corporate "Person," 2 UCLA L. Rev. 155 (1955); Mark A. Gregory, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Horwitz, supra; Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-51 (1988); Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L.J. 577 (1990); Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. Rev. 1425, 1450-65 (1992); Note, Constitutional Rights of the Corporate Person, 91 Yale L.J. 1641 (1982).
50. Courts' treatment of groups as identical to individuals is not restricted to questions regarding corporations. See, e.g., Lee E. Teitelbaum, The Family as a System: A Preliminary Sketch, 1996 Utah L. Rev. 537, 542 (arguing courts treat family as a "free-standing thing" that "must be given some decisional space" without considering that "spouses were not free to vary their arrangements materially from the public definition of marriage").
51. See, e.g., Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 578 (1839) (argument) (stating that a corporation as an "artificial body politic" is "always confined to defined purposes") (emphasis added).
52. Thus, for example, "private" police forces are now significantly larger than governmental ones. See, e.g., David H. Bayley, Police for the Future 10 (1994) (discussing rise of private police and reporting that number of private security guards in 1990 was three times larger than number of publicly funded police and growing faster); Les Johnston, The Rebirth of Private Policing 101 (1992) (quoting estimate that for every bugging device used by government agents, 300 are used by private security personnel); Gerald E. Frug, City Services, 73 N.Y.U. L. Rev. 23, 69 (1998) (discussing use of private police); Jerry A. Usher, Privatization in Criminal Justice: One Perspective in Southern California, in Privatizing the United States Justice System 138, 151 (Gary W. Bowman et al. eds., 1992) (stating that Los Angeles area had more private security officers licensed to carry guns than there were uniformed L.A. police that can be put on the street); William F. Walsh et al., The Starrett Protective Service: Private Policing in an Urban Community, in Privatizing the United States Justice System, supra, at 157, 160-74 (describing corporate owned police force of Starrett City, Brooklyn). While much of this private policing is not corporate, it seems safe to assume that corporations have a significant part in the legitimate use of force for social control. See, e.g., Utah Const. art. XII, § 16 (repealed 1993) (banning corporations from importing into state "armed persons or bodies of men"); Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton National Detective Agency 103 (1982) (describing 1892 Homestead incident and later history of Pinkerton private police); Clifford D. Shearing, The Relation between Public and Private Policing, in 15 Modern Policing: Crime and Justice: A Review of Research 399, 405, 412, 423-24 (Michael Tonry et al. eds., 1992) (discussing political opposition to Pinkertons and other private police forces in early twentieth century and radical shift in views by 1980s, leading to a new "corporate feudalism"). More generally, the increasing privatization of America has led to many traditionally public functions being taken over by private industry; corporations often exercise more intense control over public spaces than do governments. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (arguing that while First Amendment does not grant speech rights against shopping mall, state may decide that such rights are necessary or important to a viable political debate); Food Employees v. Logan Valley Plaza, 391 U.S. 308, 319 (1968) (stating that shopping mall serves traditionally public function).
53. Thus, for example, "private" police forces are now significantly larger than governmental ones. See, e.g., David H. Bayley, Police for the Future 10 (1994) (discussing rise of private police and reporting that number of private security guards in 1990 was three times larger than number of publicly funded police and growing faster); Les Johnston, The Rebirth of Private Policing 101 (1992) (quoting estimate that for every bugging device used by government agents, 300 are used by private security personnel); Gerald E. Frug, City Services, 73 N.Y.U. L. Rev. 23, 69 (1998) (discussing use of private police); Jerry A. Usher, Privatization in Criminal Justice: One Perspective in Southern California, in Privatizing the United States Justice System 138, 151 (Gary W. Bowman et al. eds., 1992) (stating that Los Angeles area had more private security officers licensed to carry guns than there were uniformed L.A. police that can be put on the street); William F. Walsh et al., The Starrett Protective Service: Private Policing in an Urban Community, in Privatizing the United States Justice System, supra, at 157, 160-74 (describing corporate owned police force of Starrett City, Brooklyn). While much of this private policing is not corporate, it seems safe to assume that corporations have a significant part in the legitimate use of force for social control. See, e.g., Utah Const. art. XII, § 16 (repealed 1993) (banning corporations from importing into state "armed persons or bodies of men"); Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton National Detective Agency 103 (1982) (describing 1892 Homestead incident and later history of Pinkerton private police); Clifford D. Shearing, The Relation between Public and Private Policing, in 15 Modern Policing: Crime and Justice: A Review of Research 399, 405, 412, 423-24 (Michael Tonry et al. eds., 1992) (discussing political opposition to Pinkertons and other private police forces in early twentieth century and radical shift in views by 1980s, leading to a new "corporate feudalism"). More generally, the increasing privatization of America has led to many traditionally public functions being taken over by private industry; corporations often exercise more intense control over public spaces than do governments. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (arguing that while First Amendment does not grant speech rights against shopping mall, state may decide that such rights are necessary or important to a viable political debate); Food Employees v. Logan Valley Plaza, 391 U.S. 308, 319 (1968) (stating that shopping mall serves traditionally public function).
54. Thus, for example, "private" police forces are now significantly larger than governmental ones. See, e.g., David H. Bayley, Police for the Future 10 (1994) (discussing rise of private police and reporting that number of private security guards in 1990 was three times larger than number of publicly funded police and growing faster); Les Johnston, The Rebirth of Private Policing 101 (1992) (quoting estimate that for every bugging device used by government agents, 300 are used by private security personnel); Gerald E. Frug, City Services, 73 N.Y.U. L. Rev. 23, 69 (1998) (discussing use of private police); Jerry A. Usher, Privatization in Criminal Justice: One Perspective in Southern California, in Privatizing the United States Justice System 138, 151 (Gary W. Bowman et al. eds., 1992) (stating that Los Angeles area had more private security officers licensed to carry guns than there were uniformed L.A. police that can be put on the street); William F. Walsh et al., The Starrett Protective Service: Private Policing in an Urban Community, in Privatizing the United States Justice System, supra, at 157, 160-74 (describing corporate owned police force of Starrett City, Brooklyn). While much of this private policing is not corporate, it seems safe to assume that corporations have a significant part in the legitimate use of force for social control. See, e.g., Utah Const. art. XII, § 16 (repealed 1993) (banning corporations from importing into state "armed persons or bodies of men"); Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton National Detective Agency 103 (1982) (describing 1892 Homestead incident and later history of Pinkerton private police); Clifford D. Shearing, The Relation between Public and Private Policing, in 15 Modern Policing: Crime and Justice: A Review of Research 399, 405, 412, 423-24 (Michael Tonry et al. eds., 1992) (discussing political opposition to Pinkertons and other private police forces in early twentieth century and radical shift in views by 1980s, leading to a new "corporate feudalism"). More generally, the increasing privatization of America has led to many traditionally public functions being taken over by private industry; corporations often exercise more intense control over public spaces than do governments. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (arguing that while First Amendment does not grant speech rights against shopping mall, state may decide that such rights are necessary or important to a viable political debate); Food Employees v. Logan Valley Plaza, 391 U.S. 308, 319 (1968) (stating that shopping mall serves traditionally public function).
55. Thus, for example, "private" police forces are now significantly larger than governmental ones. See, e.g., David H. Bayley, Police for the Future 10 (1994) (discussing rise of private police and reporting that number of private security guards in 1990 was three times larger than number of publicly funded police and growing faster); Les Johnston, The Rebirth of Private Policing 101 (1992) (quoting estimate that for every bugging device used by government agents, 300 are used by private security personnel); Gerald E. Frug, City Services, 73 N.Y.U. L. Rev. 23, 69 (1998) (discussing use of private police); Jerry A. Usher, Privatization in Criminal Justice: One Perspective in Southern California, in Privatizing the United States Justice System 138, 151 (Gary W. Bowman et al. eds., 1992) (stating that Los Angeles area had more private security officers licensed to carry guns than there were uniformed L.A. police that can be put on the street); William F. Walsh et al., The Starrett Protective Service: Private Policing in an Urban Community, in Privatizing the United States Justice System, supra, at 157, 160-74 (describing corporate owned police force of Starrett City, Brooklyn). While much of this private policing is not corporate, it seems safe to assume that corporations have a significant part in the legitimate use of force for social control. See, e.g., Utah Const. art. XII, § 16 (repealed 1993) (banning corporations from importing into state "armed persons or bodies of men"); Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton National Detective Agency 103 (1982) (describing 1892 Homestead incident and later history of Pinkerton private police); Clifford D. Shearing, The Relation between Public and Private Policing, in 15 Modern Policing: Crime and Justice: A Review of Research 399, 405, 412, 423-24 (Michael Tonry et al. eds., 1992) (discussing political opposition to Pinkertons and other private police forces in early twentieth century and radical shift in views by 1980s, leading to a new "corporate feudalism"). More generally, the increasing privatization of America has led to many traditionally public functions being taken over by private industry; corporations often exercise more intense control over public spaces than do governments. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (arguing that while First Amendment does not grant speech rights against shopping mall, state may decide that such rights are necessary or important to a viable political debate); Food Employees v. Logan Valley Plaza, 391 U.S. 308, 319 (1968) (stating that shopping mall serves traditionally public function).
56. Thus, for example, "private" police forces are now significantly larger than governmental ones. See, e.g., David H. Bayley, Police for the Future 10 (1994) (discussing rise of private police and reporting that number of private security guards in 1990 was three times larger than number of publicly funded police and growing faster); Les Johnston, The Rebirth of Private Policing 101 (1992) (quoting estimate that for every bugging device used by government agents, 300 are used by private security personnel); Gerald E. Frug, City Services, 73 N.Y.U. L. Rev. 23, 69 (1998) (discussing use of private police); Jerry A. Usher, Privatization in Criminal Justice: One Perspective in Southern California, in Privatizing the United States Justice System 138, 151 (Gary W. Bowman et al. eds., 1992) (stating that Los Angeles area had more private security officers licensed to carry guns than there were uniformed L.A. police that can be put on the street); William F. Walsh et al., The Starrett Protective Service: Private Policing in an Urban Community, in Privatizing the United States Justice System, supra, at 157, 160-74 (describing corporate owned police force of Starrett City, Brooklyn). While much of this private policing is not corporate, it seems safe to assume that corporations have a significant part in the legitimate use of force for social control. See, e.g., Utah Const. art. XII, § 16 (repealed 1993) (banning corporations from importing into state "armed persons or bodies of men"); Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton National Detective Agency 103 (1982) (describing 1892 Homestead incident and later history of Pinkerton private police); Clifford D. Shearing, The Relation between Public and Private Policing, in 15 Modern Policing: Crime and Justice: A Review of Research 399, 405, 412, 423-24 (Michael Tonry et al. eds., 1992) (discussing political opposition to Pinkertons and other private police forces in early twentieth century and radical shift in views by 1980s, leading to a new "corporate feudalism"). More generally, the increasing privatization of America has led to many traditionally public functions being taken over by private industry; corporations often exercise more intense control over public spaces than do governments. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (arguing that while First Amendment does not grant speech rights against shopping mall, state may decide that such rights are necessary or important to a viable political debate); Food Employees v. Logan Valley Plaza, 391 U.S. 308, 319 (1968) (stating that shopping mall serves traditionally public function).
57. Thus, for example, "private" police forces are now significantly larger than governmental ones. See, e.g., David H. Bayley, Police for the Future 10 (1994) (discussing rise of private police and reporting that number of private security guards in 1990 was three times larger than number of publicly funded police and growing faster); Les Johnston, The Rebirth of Private Policing 101 (1992) (quoting estimate that for every bugging device used by government agents, 300 are used by private security personnel); Gerald E. Frug, City Services, 73 N.Y.U. L. Rev. 23, 69 (1998) (discussing use of private police); Jerry A. Usher, Privatization in Criminal Justice: One Perspective in Southern California, in Privatizing the United States Justice System 138, 151 (Gary W. Bowman et al. eds., 1992) (stating that Los Angeles area had more private security officers licensed to carry guns than there were uniformed L.A. police that can be put on the street); William F. Walsh et al., The Starrett Protective Service: Private Policing in an Urban Community, in Privatizing the United States Justice System, supra, at 157, 160-74 (describing corporate owned police force of Starrett City, Brooklyn). While much of this private policing is not corporate, it seems safe to assume that corporations have a significant part in the legitimate use of force for social control. See, e.g., Utah Const. art. XII, § 16 (repealed 1993) (banning corporations from importing into state "armed persons or bodies of men"); Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton National Detective Agency 103 (1982) (describing 1892 Homestead incident and later history of Pinkerton private police); Clifford D. Shearing, The Relation between Public and Private Policing, in 15 Modern Policing: Crime and Justice: A Review of Research 399, 405, 412, 423-24 (Michael Tonry et al. eds., 1992) (discussing political opposition to Pinkertons and other private police forces in early twentieth century and radical shift in views by 1980s, leading to a new "corporate feudalism"). More generally, the increasing privatization of America has led to many traditionally public functions being taken over by private industry;
58. Thus, for example, "private" police forces are now significantly larger than governmental ones. See, e.g., David H. Bayley, Police for the Future 10 (1994) (discussing rise of private police and reporting that number of private security guards in 1990 was three times larger than number of publicly funded police and growing faster); Les Johnston, The Rebirth of Private Policing 101 (1992) (quoting estimate that for every bugging device used by government agents, 300 are used by private security personnel); Gerald E. Frug, City Services, 73 N.Y.U. L. Rev. 23, 69 (1998) (discussing use of private police); Jerry A. Usher, Privatization in Criminal Justice: One Perspective in Southern California, in Privatizing the United States Justice System 138, 151 (Gary W. Bowman et al. eds., 1992) (stating that Los Angeles area had more private security officers licensed to carry guns than there were uniformed L.A. police that can be put on the street); William F. Walsh et al., The Starrett Protective Service: Private Policing in an Urban Community, in Privatizing the United States Justice System, supra, at 157, 160-74 (describing corporate owned police force of Starrett City, Brooklyn). While much of this private policing is not corporate, it seems safe to assume that corporations have a significant part in the legitimate use of force for social control. See, e.g., Utah Const. art. XII, § 16 (repealed 1993) (banning corporations from importing into state "armed persons or bodies of men"); Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton National Detective Agency 103 (1982) (describing 1892 Homestead incident and later history of Pinkerton private police); Clifford D. Shearing, The Relation between Public and Private Policing, in 15 Modern Policing: Crime and Justice: A Review of Research 399, 405, 412, 423-24 (Michael Tonry et al. eds., 1992) (discussing political opposition to Pinkertons and other private police forces in early twentieth century and radical shift in views by 1980s, leading to a new "corporate feudalism"). More generally, the increasing privatization of America has led to many traditionally public functions being taken over by private industry; corporations often exercise more intense control over public spaces than do governments. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (arguing that while First Amendment does not grant speech rights against shopping mall, state may decide that such rights are necessary or important to a viable political debate); Food Employees v. Logan Valley Plaza, 391 U.S. 308, 319 (1968) (stating that shopping mall serves traditionally public function).
59. See infra Parts IV.B and IV.C; text accompanying note 109.
60. The early cases emphasize the bilateral public-private distinction - civil and public corporations are governmental, while eleemosynary and private ones are not - without considering the implications of intermediate forms, notwithstanding the obvious examples of the Plymouth Bay Company, the Virginia Company, or Harvard College. See, e.g., Paul v. Virginia, 75 U.S. (9 Wall.) 168, 183 (1868) (mentioning examples of intermediate forms and then forcing them into public/private dichotomy). The post-New Deal cases contain no explanation of the basis for still important distinction between business corporations - which now have nearly complete First Amendment rights - and municipal corporations, which do not. In contrast, the Court has explicitly refused to distinguish between business corporations generally and the press specifically, despite the invitation in the language of the First Amendment. Most importantly for this Article, the Court, without discussion, has assimilated not-for-profit corporations that have no shareholders to business corporations. The analysis in this Article depends on making such a distinction: the NAACP is subject to the general group-speech problems discussed in Part III but not to the special business corporation problems of Parts IV and V. Accordingly, the NAACP is properly protected. See NAACP v. Button, 371 U.S. 415, 430-31 (1963) (allowing the NAACP to assert First Amendment). However, the analogy drawn in First National Bank v. Bellotti, 435 U.S. 765 (1978), between the NAACP and a publicly traded business corporation is unsustainable. See infra note 96 and accompanying text (criticizing Bellotti and categorizing the NAACP as a committee of correspondence).
61. 454 U.S. 290, 294 (1981) (comparing political action committee to Committee of Correspondence without discussion of corporate contributors); cf. id. at 299 (Rehnquist, J.,) (noting that he concurs notwithstanding that one appellant was a corporation because ordinance was not limited to corporate contributors).
62. 404 U.S. 508, 510 (1972) (extending right of petition and association to business corporations).
63. 365 U.S. 127, 137 (1961) (holding the Sherman Antitrust Act inapplicable to an association of two or more corporations attempting to persuade the legislature or the executive with respect to a law that would produce a restraint or monopoly). Further examples could be multiplied. For a particularly dramatic one, see the discussion of Justice Black's dissenting opinion in Bell v. Maryland, 378 U.S. 225, 318 (1964) (Black, J., dissenting), in Greenwood, supra note 14.
64. Bank of the United States v. Deveaux, 9 U.S. (5 Cranch) 61, 87-91 (1809).
65. 447 U.S. 557, 581 (1980) (Stevens, J., concurring).
66. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 670 (1990) (Brennan, J., concurring) (emphasis removed). Individual shareholders, of course, have no right to withdraw money from the corporate treasury, and have no right to control its use, except via their right to participate in the election of the board of directors. Even the right of election is quite limited, since directors, once elected, owe a fiduciary duty to the corporation and all its shareholders that bars them from taking actions in violation of that duty regardless of the platform on which they were elected. See, e.g., Rev. Model Bus. Corp. Act § 8.30(a)(3) (1984). Thus, shareholders have few or none of the characteristics of common-law "ownership" of funds in the corporate treasury. In addition, Justice Brennan's comment evokes the simplistic group theory in his reference to a shareholder as a gendered "hi[m]." See Austin, 494 U.S. at 670 (Brennan, J., concurring). Most shares in publicly traded corporations are held by corporate entities (including institutional shareholders), not human beings. See infra note 111 and accompanying text.
67. See, e.g., Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 630, 645-46 (1819) (analogizing directors of charitable corporation to personal representatives of the donors, whose property the corporate funds "really" are). Of course, most of the assets of any successful business corporation (or college) are likely to have been generated by corporate activities rather than contributed by shareholders or their equivalents.
68. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964) (anthropomorphizing corporate entity to justify granting it rights); Louisville R.R. v. Letson, 43 U.S. (2 How.) 497, 555 (1844) ("[A] corporation created by a state . . . seems to us to be a person, though an artificial one, inhabiting and belonging to that state, and therefore entitled, for the purpose of suing and being sued, to be deemed a citizen of that state."); Dartmouth College, 17 U.S. (4 Wheat.) at 636-37 (opinion of Marshall, C.J.) (describing a corporation as "an artificial being" with "only those properties which the charter confers upon it," but "it is no more a state instrument than a natural person exercising the same powers [or immortality] would be"); id. at 667 (Story, J.) (stating that a corporation "is an artificial person . . . endowed with certain powers and franchises which . . . are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage").
69. 118 U.S. 394, 396 (1896) (Waite, C.J., introductory comments) (stating that the Court does not wish to hear argument on the issue).
70. 129 U.S. 26, 28 (1889). Santa Clara and Beckwith have become central pillars of constitutional jurisprudence without significant further discussion, notwithstanding their obvious weaknesses. See, e.g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 575 (1949) (Jackson, J., concurring) (listing cases that assume corporations are Fourteenth Amendment persons to justify Court's decision not to address Santa Clara or Beckwith despite dissent questioning constitutional status of corporations). The dissent by Justices Black and Douglas in Wheeling and a similar one by Justice Black in Connecticut General Life Insurance v. Johnson, 303 U.S. 77, 83-90 (1937), remain the only reasoned questioning of the basic principle that corporations are "persons" for Fourteenth Amendment purposes - plain language, history, original intent, and policy notwithstanding. But see First Nat'l Bank v. Bellotti, 435 U.S. 765, 778-80 (1978) (rejecting liberty/property distinction); id. at 822 (Rehnquist, J., dissenting) (arguing that prior departures from Northwestern National Life rule have been narrow); Northwestern Nat'l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906) (holding that Fourteenth Amendment "liberty" is only the liberty of natural persons; corporations are protected only in property interests). Occasionally, entity theory is invoked to the opposite effect. Thus, Justice Rehnquist's dissents in Central Hudson Gas, 447 U.S. at 587 (1980), and Bellotti, 435 U.S. at 825-26, each relies on the artificialness of corporate entity theory to argue that because the corporation exists only by virtue of the state, the state has plenary power to regulate it. This is an instance of Justice Rehnquist's more general theory that lesser powers are included in greater ones, a theory that has not won general acceptance in free speech or other contexts. Thus, for example, black-letter civil rights law holds that an employer may fire an at-will employee for no reason at all, but not for a discriminatory reason; similarly, a state may arbitrarily refuse to create a public forum, but having created one, may not restrict access to it to particular viewpoints. See generally Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964) (arguing for property-like protections for state-created privileges). In the corporate law area, the theory that the state's creation of the corporation gives it plenary power over it was rejected early on. See, e.g., Dartmouth College, 17 U.S. (4 Wheat.) at 636-37 (Marshall, C.J.) (using artificial entity theory to reject state control over corporation).
71. 129 U.S. 26, 28 (1889). Santa Clara and Beckwith have become central pillars of constitutional jurisprudence without significant further discussion, notwithstanding their obvious weaknesses. See, e.g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 575 (1949) (Jackson, J., concurring) (listing cases that assume corporations are Fourteenth Amendment persons to justify Court's decision not to address Santa Clara or Beckwith despite dissent questioning constitutional status of corporations). The dissent by Justices Black and Douglas in Wheeling and a similar one by Justice Black in Connecticut General Life Insurance v. Johnson, 303 U.S. 77, 83-90 (1937), remain the only reasoned questioning of the basic principle that corporations are "persons" for Fourteenth Amendment purposes - plain language, history, original intent, and policy notwithstanding. But see First Nat'l Bank v. Bellotti, 435 U.S. 765, 778-80 (1978) (rejecting liberty/property distinction); id. at 822 (Rehnquist, J., dissenting) (arguing that prior departures from Northwestern National Life rule have been narrow); Northwestern Nat'l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906) (holding that Fourteenth Amendment "liberty" is only the liberty of natural persons; corporations are protected only in property interests). Occasionally, entity theory is invoked to the opposite effect. Thus, Justice Rehnquist's dissents in Central Hudson Gas, 447 U.S. at 587 (1980), and Bellotti, 435 U.S. at 825-26, each relies on the artificialness of corporate entity theory to argue that because the corporation exists only by virtue of the state, the state has plenary power to regulate it. This is an instance of Justice Rehnquist's more general theory that lesser powers are included in greater ones, a theory that has not won general acceptance in free speech or other contexts. Thus, for example, black-letter civil rights law holds that an employer may fire an at-will employee for no reason at all, but not for a discriminatory reason; similarly, a state may arbitrarily refuse to create a public forum, but having created one, may not restrict access to it to particular viewpoints. See generally Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964) (arguing for property-like protections for state-created privileges). In the corporate law area, the theory that the state's creation of the corporation gives it plenary power over it was rejected early on. See, e.g., Dartmouth College, 17 U.S. (4 Wheat.) at 636-37 (Marshall, C.J.) (using artificial entity theory to reject state control over corporation).
72. 129 U.S. 26, 28 (1889). Santa Clara and Beckwith have become central pillars of constitutional jurisprudence without significant further discussion, notwithstanding their obvious weaknesses. See, e.g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 575 (1949) (Jackson, J., concurring) (listing cases that assume corporations are Fourteenth Amendment persons to justify Court's decision not to address Santa Clara or Beckwith despite dissent questioning constitutional status of corporations). The dissent by Justices Black and Douglas in Wheeling and a similar one by Justice Black in Connecticut General Life Insurance v. Johnson, 303 U.S. 77, 83-90 (1937), remain the only reasoned questioning of the basic principle that corporations are "persons" for Fourteenth Amendment purposes - plain language, history, original intent, and policy notwithstanding. But see First Nat'l Bank v. Bellotti, 435 U.S. 765, 778-80 (1978) (rejecting liberty/property distinction); id. at 822 (Rehnquist, J., dissenting) (arguing that prior departures from Northwestern National Life rule have been narrow); Northwestern Nat'l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906) (holding that Fourteenth Amendment "liberty" is only the liberty of natural persons; corporations are protected only in property interests). Occasionally, entity theory is invoked to the opposite effect. Thus, Justice Rehnquist's dissents in Central Hudson Gas, 447 U.S. at 587 (1980), and Bellotti, 435 U.S. at 825-26, each relies on the artificialness of corporate entity theory to argue that because the corporation exists only by virtue of the state, the state has plenary power to regulate it. This is an instance of Justice Rehnquist's more general theory that lesser powers are included in greater ones, a theory that has not won general acceptance in free speech or other contexts. Thus, for example, black-letter civil rights law holds that an employer may fire an at-will employee for no reason at all, but not for a discriminatory reason; similarly, a state may arbitrarily refuse to create a public forum, but having created one, may not restrict access to it to particular viewpoints. See generally Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964) (arguing for property-like protections for state-created privileges). In the corporate law area, the theory that the state's creation of the corporation gives it plenary power over it was rejected early on. See, e.g., Dartmouth College, 17 U.S. (4 Wheat.) at 636-37 (Marshall, C.J.) (using artificial entity theory to reject state control over corporation).
73. 129 U.S. 26, 28 (1889). Santa Clara and Beckwith have become central pillars of constitutional jurisprudence without significant further discussion, notwithstanding their obvious weaknesses. See, e.g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 575 (1949) (Jackson, J., concurring) (listing cases that assume corporations are Fourteenth Amendment persons to justify Court's decision not to address Santa Clara or Beckwith despite dissent questioning constitutional status of corporations). The dissent by Justices Black and Douglas in Wheeling and a similar one by Justice Black in Connecticut General Life Insurance v. Johnson, 303 U.S. 77, 83-90 (1937), remain the only reasoned questioning of the basic principle that corporations are "persons" for Fourteenth Amendment purposes - plain language, history, original intent, and policy notwithstanding. But see First Nat'l Bank v. Bellotti, 435 U.S. 765, 778-80 (1978) (rejecting liberty/property distinction); id. at 822 (Rehnquist, J., dissenting) (arguing that prior departures from Northwestern National Life rule have been narrow); Northwestern Nat'l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906) (holding that Fourteenth Amendment "liberty" is only the liberty of natural persons; corporations are protected only in property interests). Occasionally, entity theory is invoked to the opposite effect. Thus, Justice Rehnquist's dissents in Central Hudson Gas, 447 U.S. at 587 (1980), and Bellotti, 435 U.S. at 825-26, each relies on the artificialness of corporate entity theory to argue that because the corporation exists only by virtue of the state, the state has plenary power to regulate it. This is an instance of Justice Rehnquist's more general theory that lesser powers are included in greater ones, a theory that has not won general acceptance in free speech or other contexts. Thus, for example, black-letter civil rights law holds that an employer may fire an at-will employee for no reason at all, but not for a discriminatory reason; similarly, a state may arbitrarily refuse to create a public forum, but having created one, may not restrict access to it to particular viewpoints. See generally Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964) (arguing for property-like protections for state-created privileges). In the corporate law area, the theory that the state's creation of the corporation gives it plenary power over it was rejected early on. See, e.g., Dartmouth College, 17 U.S. (4 Wheat.) at 636-37 (Marshall, C.J.) (using artificial entity theory to reject state control over corporation).
74. 129 U.S. 26, 28 (1889). Santa Clara and Beckwith have become central pillars of constitutional jurisprudence without significant further discussion, notwithstanding their obvious weaknesses. See, e.g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 575 (1949) (Jackson, J., concurring) (listing cases that assume corporations are Fourteenth Amendment persons to justify Court's decision not to address Santa Clara or Beckwith despite dissent questioning constitutional status of corporations). The dissent by Justices Black and Douglas in Wheeling and a similar one by Justice Black in Connecticut General Life Insurance v. Johnson, 303 U.S. 77, 83-90 (1937), remain the only reasoned questioning of the basic principle that corporations are "persons" for Fourteenth Amendment purposes - plain language, history, original intent, and policy notwithstanding. But see First Nat'l Bank v. Bellotti, 435 U.S. 765, 778-80 (1978) (rejecting liberty/property distinction); id. at 822 (Rehnquist, J., dissenting) (arguing that prior departures from Northwestern National Life rule have been narrow); Northwestern Nat'l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906) (holding that Fourteenth Amendment "liberty" is only the liberty of natural persons; corporations are protected only in property interests). Occasionally, entity theory is invoked to the opposite effect. Thus, Justice Rehnquist's dissents in Central Hudson Gas, 447 U.S. at 587 (1980), and Bellotti, 435 U.S. at 825-26, each relies on the artificialness of corporate entity theory to argue that because the corporation exists only by virtue of the state, the state has plenary power to regulate it. This is an instance of Justice Rehnquist's more general theory that lesser powers are included in greater ones, a theory that has not won general acceptance in free speech or other contexts. Thus, for example, black-letter civil rights law holds that an employer may fire an at-will employee for no reason at all, but not for a discriminatory reason; similarly, a state may arbitrarily refuse to create a public forum, but having created one, may not restrict access to it to particular viewpoints. See generally Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964) (arguing for property-like protections for state-created privileges). In the corporate law area, the theory that the state's creation of the corporation gives it plenary power over it was rejected early on. See, e.g., Dartmouth College, 17 U.S. (4 Wheat.) at 636-37 (Marshall, C.J.) (using artificial entity theory to reject state control over corporation).
75. The Old Court granted corporations protection (sometimes via the Fourteenth Amendment) under the First Amendment, see Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), the Fourth Amendment, see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391 (1920) (providing to a corporation Fourth Amendment protections from producing corporate documents), the Due Process and Takings Clauses of the Fifth Amendment, see Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (Takings Clause); Missouri Pac. R.R.. Co. v. Nebraska, 164 U.S. 403, 417 (1896) (Takings Clause); Noble v. Union River Logging R.R., 147 U.S. 165, 176-77 (1893) (discussing the Due Process Clause as applied to a railroad company), the Sixth Amendment, see Armour Packing Co. v. United States, 206 U.S. 56 (1908), and the Commerce Clause, see Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 291 (1921) (invoking Commerce Clause to require state to allow foreign corporation to enter state and do business without authorization). The New Deal constitutional revolution left most of these existing corporate rights undisturbed and added more. Corporations were protected under the Double Jeopardy Clause, see Fong Foo v. United States, 369 U.S. 141 (1962); United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) (referring to corporation as "him"), and, at least in dicta, the Seventh Amendment, see Ross v. Bernhard, 396 U.S. 531 (1960). The modern rule has been to equate corporations and individuals for First Amendment purposes. See Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1 (1986) (protecting right not to aid another's speech); Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (protecting right to advertise); Consolidated Edison v. Public Serv. Comm'n, 447 U.S. 530 (1980) (upholding utility company's right of political advocacy); Virginia State Bd. of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748 (1976) (voiding a statutory ban on advertising prescription drug prices); NAACP v. Button, 371 U.S. 415 (1963) (upholding NAACP's right to solicit persons seeking legal redress). Thus, current federal constitutional interpretation bars regulation of core political advocacy by corporations, Bellotti, 435 U.S. at 776, 784, particularly when "corporate" or "shareholder" interests are at stake. Id. at 805-06, 816, 821 (White, J., dissenting from Court's finding that corporate political speech is always protected but agreeing that when corporate interests are at stake, First Amendment protection would be warranted). However, the bar is less stringent in the context of direct contributions to political candidates. Austin, 494 U.S. 652 (limiting corporate contributions to political candidates because of appearance of corruption); FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (holding nonprofits have a greater right to political speech than business corporations in the candidate-contribution context).
76. 430 U.S. 564.
77. Id. at 569; cf. Dow Chemical Co. v. United States, 476 U.S. 227, 236 (1986) (assuming that Dow has a "reasonable, legitimate and objective expectation of privacy" in a discussion that distinguished between commercial and personal premises but not between corporate and human proprietors); Marshall v. Barlows, Inc., 436 U.S. 307, 312, 315-16 (1977) (stating that purpose of the Fourth Amendment is to "safeguard the privacy and security of individuals" in their personal and business affairs and extending protections to a corporation without further discussion and referring to corporation as a gendered individual). A particularly clear example of treating the corporation as an individual is Justice Black's dissenting opinion in Bell v. Maryland, 378 U.S. 226, 318 (1964) (Black, J., dissenting), which analogized a corporate decision to refuse to serve Black customers to an individual's right to decide whom to invite into his living room, while referring throughout the opinion to the corporation by the name of its CEO, Mr. Hooper. See Greenwood, supra note 14, at 1090-92 & n.138 (discussing personification of corporation in Bell).
78. Northwestern Nat'l Life, 203 U.S. at 255 (limiting corporate "liberty" interests). The doctrine was that the liberties protected by the Fourteenth Amendment are personal and so unavailable to corporations, which could claim due process protection only for their property. In the First Amendment context, the "liberty" limitation of Northwestern National Life, 203 U.S. 243 already narrowed by Pierce, 268 U.S. at 535 (allowing corporations to assert First Amendment claim on ground that they have protected business and property, not just liberty, interests), was virtually abandoned in Grosjean v. American Press Co., 297 U.S. 233 (1936) (newspaper may invoke full First Amendment rights) and Bellotti, 435 U.S. at 776 (corporate speech is protected without regard to the speaker). See, e.g., Hale v. Henkel, 201 U.S. 43 (1906) (stating that a corporation lacks Fifth Amendment privilege against self incrimination). See California Banker v. Schultz, 416 U.S. 21, 65 (1974); United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (stating that a corporation has only limited Fourth Amendment right to conduct its affairs in secrecy); FTC v. American Tobacco Co., 264 U.S. 298 (1924) (holding that corporations do not have same right of privacy as individuals but still should have protection from unlawful and unreasonable demands made in the name of public investigation). The Hale holding was even extended to a three-person partnership, where the entity theory clearly has no application. Bellis v. United States, 417 U.S. 85, 92 (1974). But see GM Leasing Co. v. United States, 429 U.S. 338 (1976) (holding that a Fourth Amendment warrant was required to "invade" corporate offices); Dow Chemical, 476 U.S. at 236 (holding that Dow Chemical has a "reasonable, legitimate and objective expectation of privacy" precluding warrantless airplane surveillance). Outside of the "regulatory warrant" area, corporations continue to have protected Fourth Amendment privacy interests despite the limitations. Similarly, the old doctrine that corporations lack "liberty" or "personal" rights continues to be repeated from time to time. Hague v. CIO, 307 U.S. 496, 527 (1939) (holding that a labor union and nonprofit corporation lack First Amendment rights), United States v. White, 322 U.S. 694, 698-701 (1944) (stating that a Fifth Amendment right against self-incrimination is "personal" and not available to union or, in dicta, corporations). Additionally, the Fourteeth Amendment's Privileges and Immunities Clause, which by its terms applies only to "citizens," is unavailable to corporations. See, e.g., Hague v. CIO, 307 U.S. 496, 514 n.22 (1939) (listing other cases that have held that natural persons alone are entitled to the privileges and immunities of the Fourteenth Amendment). Corporations are not "citizens" for Fourteenth Amendment purposes, Pembina Consol. Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888); Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1868), or for purposes of Article IV's Privileges and Immunities Clause, Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839), although they are for diversity purposes, Louisville, Cincinnati & Charleston R.R. Co. v. Letson, 43 U.S. (2 How.) 497 (1844). In light of the aborted promise of the Privileges and Immunities Clause, this limitation of corporate rights has proved of no practical significance. On the other hand, American corporations have an important right, apparently also constitutionalized, that no human being has: they have the right to choose their constitutive law (parallel, perhaps, to a human being's personal law) without regard to their place of residence or any other restriction. See Bank of Augusta v. Earle, 38 U.S.(13 Pet.) 519 (1839) (determining that corporations created by one state may operate in another under principles of comity); Edgar v. MITE Corp., 457 U.S. 624, 645-46 (1982) (holding that "Illinois has no interest in regulating the internal affairs of foreign corporations" even if they are headquartered in Illinois and have a substantial impact on the Illinois economy, presumably because the Constitution somehow requires states to allow corporations to choose the law applicable to them) (emphasis added). A corporation, thus, may choose to be ruled by the law of Delaware by simply so declaring (and paying Delaware's fees and meeting a few nonburdensome formal requirements). To get a Nevada divorce, a human must do more than that. This corporate choice-of-law rule is rejected by most of the continental jurisdictions under the siege reel doctrine. See, e.g., Case 81/87 The Queen v. H.M. Treasury ex parte Daily Mail and General Trust PLC, 1988 E.C.R. 5483; Terence L. Blackburn, The Unification of Corporate Laws: the United States, the European Community and the Race to Laxity, 3 Geo. Mason Indep. L. Rev. 1, 86-87 (1994).
79. Northwestern Nat'l Life, 203 U.S. at 255 (limiting corporate "liberty" interests). The doctrine was that the liberties protected by the Fourteenth Amendment are personal and so unavailable to corporations, which could claim due process protection only for their property. In the First Amendment context, the "liberty" limitation of Northwestern National Life, 203 U.S. 243 already narrowed by Pierce, 268 U.S. at 535 (allowing corporations to assert First Amendment claim on ground that they have protected business and property, not just liberty, interests), was virtually abandoned in Grosjean v. American Press Co., 297 U.S. 233 (1936) (newspaper may invoke full First Amendment rights) and Bellotti, 435 U.S. at 776 (corporate speech is protected without regard to the speaker). See, e.g., Hale v. Henkel, 201 U.S. 43 (1906) (stating that a corporation lacks Fifth Amendment privilege against self incrimination). See California Banker v. Schultz, 416 U.S. 21, 65 (1974); United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (stating that a corporation has only limited Fourth Amendment right to conduct its affairs in secrecy); FTC v. American Tobacco Co., 264 U.S. 298 (1924) (holding that corporations do not have same right of privacy as individuals but still should have protection from unlawful and unreasonable demands made in the name of public investigation). The Hale holding was even extended to a three-person partnership, where the entity theory clearly has no application. Bellis v. United States, 417 U.S. 85, 92 (1974). But see GM Leasing Co. v. United States, 429 U.S. 338 (1976) (holding that a Fourth Amendment warrant was required to "invade" corporate offices); Dow Chemical, 476 U.S. at 236 (holding that Dow Chemical has a "reasonable, legitimate and objective expectation of privacy" precluding warrantless airplane surveillance). Outside of the "regulatory warrant" area, corporations continue to have protected Fourth Amendment privacy interests despite the limitations. Similarly, the old doctrine that corporations lack "liberty" or "personal" rights continues to be repeated from time to time. Hague v. CIO, 307 U.S. 496, 527 (1939) (holding that a labor union and nonprofit corporation lack First Amendment rights), United States v. White, 322 U.S. 694, 698-701 (1944) (stating that a Fifth Amendment right against self-incrimination is "personal" and not available to union or, in dicta, corporations). Additionally, the Fourteeth Amendment's Privileges and Immunities Clause, which by its terms applies only to "citizens," is unavailable to corporations. See, e.g., Hague v. CIO, 307 U.S. 496, 514 n.22 (1939) (listing other cases that have held that natural persons alone are entitled to the privileges and immunities of the Fourteenth Amendment). Corporations are not "citizens" for Fourteenth Amendment purposes, Pembina Consol. Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888); Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1868), or for purposes of Article IV's Privileges and Immunities Clause, Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839), although they are for diversity purposes, Louisville, Cincinnati & Charleston R.R. Co. v. Letson, 43 U.S. (2 How.) 497 (1844). In light of the aborted promise of the Privileges and Immunities Clause, this limitation of corporate rights has proved of no practical significance. On the other hand, American corporations have an important right, apparently also constitutionalized, that no human being has: they have the right to choose their constitutive law (parallel, perhaps, to a human being's personal law) without regard to their place of residence or any other restriction. See Bank of Augusta v. Earle, 38 U.S.(13 Pet.) 519 (1839) (determining that corporations created by one state may operate in another under principles of comity); Edgar v. MITE Corp., 457 U.S. 624, 645-46 (1982) (holding that "Illinois has no interest in regulating the internal affairs of foreign corporations" even if they are headquartered in Illinois and have a substantial impact on the Illinois economy, presumably because the Constitution somehow requires states to allow corporations to choose the law applicable to them) (emphasis added). A corporation, thus, may choose to be ruled by the law of Delaware by simply so declaring (and paying Delaware's fees and meeting a few nonburdensome formal requirements). To get a Nevada divorce, a human must do more than that. This corporate choice-of-law rule is rejected by most of the continental jurisdictions under the siege reel doctrine. See, e.g., Case 81/87 The Queen v. H.M. Treasury ex parte Daily Mail and General Trust PLC, 1988 E.C.R. 5483; Terence L. Blackburn, The Unification of Corporate Laws: the United States, the European Community and the Race to Laxity, 3 Geo. Mason Indep. L. Rev. 1, 86-87 (1994).
80. Northwestern Nat'l Life, 203 U.S. at 255 (limiting corporate "liberty" interests). The doctrine was that the liberties protected by the Fourteenth Amendment are personal and so unavailable to corporations, which could claim due process protection only for their property. In the First Amendment context, the "liberty" limitation of Northwestern National Life, 203 U.S. 243 already narrowed by Pierce, 268 U.S. at 535 (allowing corporations to assert First Amendment claim on ground that they have protected business and property, not just liberty, interests), was virtually abandoned in Grosjean v. American Press Co., 297 U.S. 233 (1936) (newspaper may invoke full First Amendment rights) and Bellotti, 435 U.S. at 776 (corporate speech is protected without regard to the speaker). See, e.g., Hale v. Henkel, 201 U.S. 43 (1906) (stating that a corporation lacks Fifth Amendment privilege against self incrimination). See California Banker v. Schultz, 416 U.S. 21, 65 (1974); United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (stating that a corporation has only limited Fourth Amendment right to conduct its affairs in secrecy); FTC v. American Tobacco Co., 264 U.S. 298 (1924) (holding that corporations do not have same right of privacy as individuals but still should have protection from unlawful and unreasonable demands made in the name of public investigation). The Hale holding was even extended to a three-person partnership, where the entity theory clearly has no application. Bellis v. United States, 417 U.S. 85, 92 (1974). But see GM Leasing Co. v. United States, 429 U.S. 338 (1976) (holding that a Fourth Amendment warrant was required to "invade" corporate offices); Dow Chemical, 476 U.S. at 236 (holding that Dow Chemical has a "reasonable, legitimate and objective expectation of privacy" precluding warrantless airplane surveillance). Outside of the "regulatory warrant" area, corporations continue to have protected Fourth Amendment privacy interests despite the limitations. Similarly, the old doctrine that corporations lack "liberty" or "personal" rights continues to be repeated from time to time. Hague v. CIO, 307 U.S. 496, 527 (1939) (holding that a labor union and nonprofit corporation lack First Amendment rights), United States v. White, 322 U.S. 694, 698-701 (1944) (stating that a Fifth Amendment right against self-incrimination is "personal" and not available to union or, in dicta, corporations). Additionally, the Fourteeth Amendment's Privileges and Immunities Clause, which by its terms applies only to "citizens," is unavailable to corporations. See, e.g., Hague v. CIO, 307 U.S. 496, 514 n.22 (1939) (listing other cases that have held that natural persons alone are entitled to the privileges and immunities of the Fourteenth Amendment). Corporations are not "citizens" for Fourteenth Amendment purposes, Pembina Consol. Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888); Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1868), or for purposes of Article IV's Privileges and Immunities Clause, Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839), although they are for diversity purposes, Louisville, Cincinnati & Charleston R.R. Co. v. Letson, 43 U.S. (2 How.) 497 (1844). In light of the aborted promise of the Privileges and Immunities Clause, this limitation of corporate rights has proved of no practical significance. On the other hand, American corporations have an important right, apparently also constitutionalized, that no human being has: they have the right to choose their constitutive law (parallel, perhaps, to a human being's personal law) without regard to their place of residence or any other restriction. See Bank of Augusta v. Earle, 38 U.S.(13 Pet.) 519 (1839) (determining that corporations created by one state may operate in another under principles of comity); Edgar v. MITE Corp., 457 U.S. 624, 645-46 (1982) (holding that "Illinois has no interest in regulating the internal affairs of foreign corporations" even if they are headquartered in Illinois and have a substantial impact on the Illinois economy, presumably because the Constitution somehow requires states to allow corporations to choose the law applicable to them) (emphasis added). A corporation, thus, may choose to be ruled by the law of Delaware by simply so declaring (and paying Delaware's fees and meeting a few nonburdensome formal requirements). To get a Nevada divorce, a human must do more than that. This corporate choice-of-law rule is rejected by most of the continental jurisdictions under the siege reel doctrine. See, e.g., Case 81/87 The Queen v. H.M. Treasury ex parte Daily Mail and General Trust PLC, 1988 E.C.R. 5483; Terence L. Blackburn, The Unification of Corporate Laws: the United States, the European Community and the Race to Laxity, 3 Geo. Mason Indep. L. Rev. 1, 86-87 (1994).
81. 424 U.S. 1, 19-23 (1976).
82. See, e.g., J. Skelly Wright, Politics and the Constitution: Is Money Speech, 85 Yale L.J. 1001, 1006 (1976) (arguing that expenditures of money should not be protected as speech under the First Amendment because of the distinction between speech and "speech related conduct"). Effectively all corporate speech is purchased (with the possible exception of direct statements by the Board) and thus would be unprotected under Wright's analysis.
83. A view not shared by the legal realists. See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 811 (1935) ("Nobody has ever seen a corporation. What right have we to believe in corporations if we do not believe in angels?"). For further discussion, see generally Greenwood, supra note 14.
84. See supra note 39. The exception, of course, is when the corporation's board decides to distribute corporate funds to shareholders, in the form of dividends or at dissolution. But shareholders have no authority to compel such distributions.
85. John C. Coffee, Jr., "No Soul to Damn: No Body to Kick," 79 Mich. L. Rev. 386, 386 (1981).
86. The Due Process Clause extends its protections to "persons," not merely citizens. Thus, it seems clear that resident foreigners are entitled to the protection of the Free Speech Clause. Hague v. CIO, 307 U.S. 496, 519 (1939) (Stone, J., concurring). Although the language of the Clause offers no reason to think that our government is permitted to deny the due process rights of "persons" located abroad, the Court has consistently held that congressional power is plenary in this area. See Kleindienst v. Mandel, 408 U.S. 753, 766-67 (1972) (quoting Galvan v. Press, 347 U.S. 522 (1954)); The Chinese Exclusion Case, 130 U.S. 581 (1889). Perhaps the Court's decision, that in this area it is not "emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), stems from a understandable fear that sovereign-immunity doctrine alone would not be able to withstand a rash of lawsuits from deposed dictators, rejected immigration applicants or other self-designated victims of American foreign-policy actions. If indeed that was the motivation for holding that our government may disregard its Constitution providing it does so with respect to foreigners, it might more appropriately have been achieved by requiring that suit be brought by a U.S. citizen with standing and injury.
87. 381 U.S. 301 (1965).
88. Id. at 308.
89. 408 U.S. 753 (1972).
90. 425 U.S. 748 (1976).
91. Id. at 756.
92. For an argument that corporate and government speech rights are similar and that because corporate speech is constitutionally protected, municipal speech should be as well, see Note, The Constitutionality of Municipal Advocacy in Statewide Referendum Campaigns, 93 Harv. L. Rev. 535 (1980).
93. The argument is simply that, as Dean Yudof put it, that "a ban on [governmental expenditures to create public support for governmental activities] is a reasonable prophylactic measure to insure that consent processes are not distorted." Mark G. Yudof, When Government Speaks: Politics, Law and Government Expression in America 49 (1983) [hereinafter Yudof, When Government Speaks]. For examples, see 18 U.S.C. § 1913 (1994) (barring Agriculture and Interior Departments from campaigning for or against pending legislation with appropriated funds); 22 U.S.C. 1461 (1994) (barring United States government agencies from distributing in U.S. propaganda produced for distribution abroad); Williams v. Mayor, 289 U.S. 36 (1933) (holding that a municipal corporation has no constitutional rights against the state that created it); City of Boston v. Anderson, 380 N.E. 2d 628 (1978) (finding no federal question where state barred municipal corporation from some public relations and advertising activities). For further discussion, see Yudof, When Government Speaks, supra, at 6-9, 42-50, which I follow here. See also Steven Shiffren, Government Speech, 27 UCLA L. Rev. 433 (1980); Mark Yudof, When Governments Speak: Toward a Theory of Governmental Expression and the First Amendment, 57 Tex. L. Rev. 863 (1979) [hereinafter Yudof, Theory].
94. The argument is simply that, as Dean Yudof put it, that "a ban on [governmental expenditures to create public support for governmental activities] is a reasonable prophylactic measure to insure that consent processes are not distorted." Mark G. Yudof, When Government Speaks: Politics, Law and Government Expression in America 49 (1983) [hereinafter Yudof, When Government Speaks]. For examples, see 18 U.S.C. § 1913 (1994) (barring Agriculture and Interior Departments from campaigning for or against pending legislation with appropriated funds); 22 U.S.C. 1461 (1994) (barring United States government agencies from distributing in U.S. propaganda produced for distribution abroad); Williams v. Mayor, 289 U.S. 36 (1933) (holding that a municipal corporation has no constitutional rights against the state that created it); City of Boston v. Anderson, 380 N.E. 2d 628 (1978) (finding no federal question where state barred municipal corporation from some public relations and advertising activities). For further discussion, see Yudof, When Government Speaks, supra, at 6-9, 42-50, which I follow here. See also Steven Shiffren, Government Speech, 27 UCLA L. Rev. 433 (1980); Mark Yudof, When Governments Speak: Toward a Theory of Governmental Expression and the First Amendment, 57 Tex. L. Rev. 863 (1979) [hereinafter Yudof, Theory].
95. The argument is simply that, as Dean Yudof put it, that "a ban on [governmental expenditures to create public support for governmental activities] is a reasonable prophylactic measure to insure that consent processes are not distorted." Mark G. Yudof, When Government Speaks: Politics, Law and Government Expression in America 49 (1983) [hereinafter Yudof, When Government Speaks]. For examples, see 18 U.S.C. § 1913 (1994) (barring Agriculture and Interior Departments from campaigning for or against pending legislation with appropriated funds); 22 U.S.C. 1461 (1994) (barring United States government agencies from distributing in U.S. propaganda produced for distribution abroad); Williams v. Mayor, 289 U.S. 36 (1933) (holding that a municipal corporation has no constitutional rights against the state that created it); City of Boston v. Anderson, 380 N.E. 2d 628 (1978) (finding no federal question where state barred municipal corporation from some public relations and advertising activities). For further discussion, see Yudof, When Government Speaks, supra, at 6-9, 42-50, which I follow here. See also Steven Shiffren, Government Speech, 27 UCLA L. Rev. 433 (1980); Mark Yudof, When Governments Speak: Toward a Theory of Governmental Expression and the First Amendment, 57 Tex. L. Rev. 863 (1979) [hereinafter Yudof, Theory].
96. The potential distorting effect of corporate attempts to modify the rules that regulate them are at least as serious as similar governmental attempts. Governmental officers generally view themselves as obligated to act in the public interest (even if they may not agree with the public's view of that interest). In contrast, corporate officers are specifically directed to ignore the public interest and even the interests of corporate participants, except for the single interest in increasing the present discounted value of returns to stock ownership.
97. As the Court noted, almost identical economic regulation had been upheld against substantively (though not doctrinally) identical arguments in the classic anti-Lochner cases, Williamson v. Lee Optical Co., 348 U.S. 483 (1955), and Semler v. Dental Examiners, 294 U.S. 608 (1935) . See Note, supra note 19 (criticizing Bellotti as a revival of Lochnerian due process jurisprudence); cf. infra note 160 and accompanying text (discussing problem with the state-society distinction).
98. Virginia State Bd. of Pharmacy, 425 U.S. at 765. The Court offered no explanation of how this doctrine can be squared, constitutionally, with the constitutionally mandated patent and copyright systems, each of which is based on the assumption that governmental limitations on the "free flow of commercial information" are necessary to the functioning of the economy. See generally James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 Cal. L. Rev. 1415 (1992) (discussing the problem of commodified information in a market system that assumes information is free).
99. The usual phrase, "free market of ideas," is strained to its limits by Virginia State Board of Pharmacy: the issue in that case was price advertising, not ideas at all in any ordinary sense of the word.
100. 435 U.S. 765 (1978).
101. The Court had already, in Buckley v. Valeo, 424 U.S. 1 (1976), rejected the theory (accepted in many other democracies) that democracy requires limits on campaign financing to assure that the rich do not have undue influence over the decisions of the people. Cf. Walzer, supra note 4, at 310-11 (deploring the dominance of money in electoral politics); Pierre Avril, Regulation of Political Finance in France, in Comparative Political Finance Among the Democracies 89-95 (Herbert Alexander & Rei Shiratori eds., 1994) (describing detailed French regulation of campaign contributions and expenditures); Thomas F. Gede, Comparative Study of U.S. and West German Political Finance Regulation: The Question of Contribution Controls, 4 Hastings Int'l & Comp. L. Rev. 543, 544 (1981) (explaining German law is designed to provide a "floor" of campaign funding); Christina Holtz-Bacha & Lynda Lee Kaid, A Comparative Perspective on Political Advertising, in Political Advertising in Western Democracies 8, 14 tbl. 2.4 (1995) (finding that France, Denmark, Germany, Netherlands, U.K., and Israel provide for equal or proportional television time rather than allocating by purchase); Sanford Levinson, Electoral Regulation: Some Comments, 18 Hofstra L. Rev. 411, 417 (1989) (pointing to diverse views among democracies on campaign finance); Rod Stanton Fiori, Note, A Comparative Analysis of English and American Campaign Finance Laws, 11 Hastings Int'l & Comp. L. Rev. 289, 293 (1988) (explaining U.K. law bans virtually all third party ("soft money") expenditures on behalf of candidates and parties). Nonetheless, the Court's framing of the question is quite disingenuous: the issue in fact involved only corporate financing, not speech itself. As the Court pointed out, no one suggested that these advertisements would be improper if they were funded by noncorporate sources.
102. The Court had already, in Buckley v. Valeo, 424 U.S. 1 (1976), rejected the theory (accepted in many other democracies) that democracy requires limits on campaign financing to assure that the rich do not have undue influence over the decisions of the people. Cf. Walzer, supra note 4, at 310-11 (deploring the dominance of money in electoral politics); Pierre Avril, Regulation of Political Finance in France, in Comparative Political Finance Among the Democracies 89-95 (Herbert Alexander & Rei Shiratori eds., 1994) (describing detailed French regulation of campaign contributions and expenditures); Thomas F. Gede, Comparative Study of U.S. and West German Political Finance Regulation: The Question of Contribution Controls, 4 Hastings Int'l & Comp. L. Rev. 543, 544 (1981) (explaining German law is designed to provide a "floor" of campaign funding); Christina Holtz-Bacha & Lynda Lee Kaid, A Comparative Perspective on Political Advertising, in Political Advertising in Western Democracies 8, 14 tbl. 2.4 (1995) (finding that France, Denmark, Germany, Netherlands, U.K., and Israel provide for equal or proportional television time rather than allocating by purchase); Sanford Levinson, Electoral Regulation: Some Comments, 18 Hofstra L. Rev. 411, 417 (1989) (pointing to diverse views among democracies on campaign finance); Rod Stanton Fiori, Note, A Comparative Analysis of English and American Campaign Finance Laws, 11 Hastings Int'l & Comp. L. Rev. 289, 293 (1988) (explaining U.K. law bans virtually all third party ("soft money") expenditures on behalf of candidates and parties). Nonetheless, the Court's framing of the question is quite disingenuous: the issue in fact involved only corporate financing, not speech itself. As the Court pointed out, no one suggested that these advertisements would be improper if they were funded by noncorporate sources.
103. The Court had already, in Buckley v. Valeo, 424 U.S. 1 (1976), rejected the theory (accepted in many other democracies) that democracy requires limits on campaign financing to assure that the rich do not have undue influence over the decisions of the people. Cf. Walzer, supra note 4, at 310-11 (deploring the dominance of money in electoral politics); Pierre Avril, Regulation of Political Finance in France, in Comparative Political Finance Among the Democracies 89-95 (Herbert Alexander & Rei Shiratori eds., 1994) (describing detailed French regulation of campaign contributions and expenditures); Thomas F. Gede, Comparative Study of U.S. and West German Political Finance Regulation: The Question of Contribution Controls, 4 Hastings Int'l & Comp. L. Rev. 543, 544 (1981) (explaining German law is designed to provide a "floor" of campaign funding); Christina Holtz-Bacha & Lynda Lee Kaid, A Comparative Perspective on Political Advertising, in Political Advertising in Western Democracies 8, 14 tbl. 2.4 (1995) (finding that France, Denmark, Germany, Netherlands, U.K., and Israel provide for equal or proportional television time rather than allocating by purchase); Sanford Levinson, Electoral Regulation: Some Comments, 18 Hofstra L. Rev. 411, 417 (1989) (pointing to diverse views among democracies on campaign finance); Rod Stanton Fiori, Note, A Comparative Analysis of English and American Campaign Finance Laws, 11 Hastings Int'l & Comp. L. Rev. 289, 293 (1988) (explaining U.K. law bans virtually all third party ("soft money") expenditures on behalf of candidates and parties). Nonetheless, the Court's framing of the question is quite disingenuous: the issue in fact involved only corporate financing, not speech itself. As the Court pointed out, no one suggested that these advertisements would be improper if they were funded by noncorporate sources.
104. The Court had already, in Buckley v. Valeo, 424 U.S. 1 (1976), rejected the theory (accepted in many other democracies) that democracy requires limits on campaign financing to assure that the rich do not have undue influence over the decisions of the people. Cf. Walzer, supra note 4, at 310-11 (deploring the dominance of money in electoral politics); Pierre Avril, Regulation of Political Finance in France, in Comparative Political Finance Among the Democracies 89-95 (Herbert Alexander & Rei Shiratori eds., 1994) (describing detailed French regulation of campaign contributions and expenditures); Thomas F. Gede, Comparative Study of U.S. and West German Political Finance Regulation: The Question of Contribution Controls, 4 Hastings Int'l & Comp. L. Rev. 543, 544 (1981) (explaining German law is designed to provide a "floor" of campaign funding); Christina Holtz-Bacha & Lynda Lee Kaid, A Comparative Perspective on Political Advertising, in Political Advertising in Western Democracies 8, 14 tbl. 2.4 (1995) (finding that France, Denmark, Germany, Netherlands, U.K., and Israel provide for equal or proportional television time rather than allocating by purchase); Sanford Levinson, Electoral Regulation: Some Comments, 18 Hofstra L. Rev. 411, 417 (1989) (pointing to diverse views among democracies on campaign finance); Rod Stanton Fiori, Note, A Comparative Analysis of English and American Campaign Finance Laws, 11 Hastings Int'l & Comp. L. Rev. 289, 293 (1988) (explaining U.K. law bans virtually all third party ("soft money") expenditures on behalf of candidates and parties). Nonetheless, the Court's framing of the question is quite disingenuous: the issue in fact involved only corporate financing, not speech itself. As the Court pointed out, no one suggested that these advertisements would be improper if they were funded by noncorporate sources.
105. The Court had already, in Buckley v. Valeo, 424 U.S. 1 (1976), rejected the theory (accepted in many other democracies) that democracy requires limits on campaign financing to assure that the rich do not have undue influence over the decisions of the people. Cf. Walzer, supra note 4, at 310-11 (deploring the dominance of money in electoral politics); Pierre Avril, Regulation of Political Finance in France, in Comparative Political Finance Among the Democracies 89-95 (Herbert Alexander & Rei Shiratori eds., 1994) (describing detailed French regulation of campaign contributions and expenditures); Thomas F. Gede, Comparative Study of U.S. and West German Political Finance Regulation: The Question of Contribution Controls, 4 Hastings Int'l & Comp. L. Rev. 543, 544 (1981) (explaining German law is designed to provide a "floor" of campaign funding); Christina Holtz-Bacha & Lynda Lee Kaid, A Comparative Perspective on Political Advertising, in Political Advertising in Western Democracies 8, 14 tbl. 2.4 (1995) (finding that France, Denmark, Germany, Netherlands, U.K., and Israel provide for equal or proportional television time rather than allocating by purchase); Sanford Levinson, Electoral Regulation: Some Comments, 18 Hofstra L. Rev. 411, 417 (1989) (pointing to diverse views among democracies on campaign finance); Rod Stanton Fiori, Note, A Comparative Analysis of English and American Campaign Finance Laws, 11 Hastings Int'l & Comp. L. Rev. 289, 293 (1988) (explaining U.K. law bans virtually all third party ("soft money") expenditures on behalf of candidates and parties). Nonetheless, the Court's framing of the question is quite disingenuous: the issue in fact involved only corporate financing, not speech itself. As the Court pointed out, no one suggested that these advertisements would be improper if they were funded by noncorporate sources.
106. Bellotti, 435 U.S. at 787.
107. Modern economic and psychological theories of behavior under conditions of limited rationality suggest that decision making processes will be distorted by quantities even of pure information, so that it is never true that more is unequivocally better. In an information cascade, for example, people seeking to make decisions but aware of their own limited capacities use decisions of others as checks on, or substitutes for, their own independent research and analysis. Under the right circumstances, this process can lead to a cascade, in which a small change in the initial starting points results in a huge change in the end point: a relatively small amount of well-placed advertising at an early stage
108. Modern economic and psychological theories of behavior under conditions of limited rationality suggest that decision making processes will be distorted by quantities even of pure information, so that it is never true that more is unequivocally better. In an information cascade, for example, people seeking to make decisions but aware of their own limited capacities use decisions of others as checks on, or substitutes for, their own independent research and analysis. Under the right circumstances, this process can lead to a cascade, in which a small change in the initial starting points results in a huge change in the end point: a relatively small amount of well-placed advertising at an early stage can make the difference between the movie that everyone must see and the also ran. See, e.g., Richard H. Thaler, Quasi-Rational Economics (1991); W. Brian Arthur, Positive Feedbacks in the Economy, Sci. Am., Feb. 1990, at 92; Yes, Ten Million People Can Be Wrong, The Economist, Feb. 19, 1994, at 81(1).
109. Modern economic and psychological theories of behavior under conditions of limited rationality suggest that decision making processes will be distorted by quantities even of pure information, so that it is never true that more is unequivocally better. In an information cascade, for example, people seeking to make decisions but aware of their own limited capacities use decisions of others as checks on, or substitutes for, their own independent research and analysis. Under the right circumstances, this process can lead to a cascade, in which a small change in the initial starting points results in a huge change in the end point: a relatively small amount of well-placed advertising at an early stage can make the difference between the movie that everyone must see and the also ran. See, e.g., Richard H. Thaler, Quasi-Rational Economics (1991); W. Brian Arthur, Positive Feedbacks in the Economy, Sci. Am., Feb. 1990, at 92; Yes, Ten Million People Can Be Wrong, The Economist, Feb. 19, 1994, at 81(1).
110. See Yudof, When Government Speaks, supra note 60, at 45 ("[I]t is inconceivable that governments should assert First Amendment rights antagonistic to the interests of the larger community."); William W. Van Alstyne, The First Amendment and the Suppression of Warmongering Propaganda in the United States, 31 Law & Contemp. Probs. 530, 536-40 (1966) (arguing that the government should not be allowed to prevent propaganda from abroad).
111. See Yudof, When Government Speaks, supra note 60, at 45 ("[I]t is inconceivable that governments should assert First Amendment rights antagonistic to the interests of the larger community."); William W. Van Alstyne, The First Amendment and the Suppression of Warmongering Propaganda in the United States, 31 Law & Contemp. Probs. 530, 536-40 (1966) (arguing that the government should not be allowed to prevent propaganda from abroad).
112. See supra text accompanying note 56 (discussing Kleindienst v. Mandel, 408 U.S. 753 (1972)).
113. See supra note 60.
114. Bellotti, 435 U.S. at 794 n.34.
115. Del. Code Ann. tit. viii, § 141(a) (1998) ("The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors . . . ."); Rev. Model Bus. Corp. Act § 8.01(b) (1984) ("All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors . . . ."); 17 C.F.R. § 240.14a-8(c)(7) (1998) (allowing corporations to exclude from proxy statements shareholder proposals "deal[ing] with a matter relating to the company's ordinary business operations"). See the discussion in Greenwood, supra note 14, at 1038-40 & n.49.
116. I do not propose changing this rule. By setting a single goal and holding managers to it, the legal directive allows corporate executives to be administrators rather than politicians. See infra Part IV.
117. This can take the form of advocating lower safety, environmental, labor protection, or antitrust standards ("deregulation"), but can also include advocacy of greater governmental intervention, whether in the form of governmentally created monopoly or subsidy (e.g., crop subsidies, public land use, the ICC, and so on) or the imposition of regulations designed to hurt competitors. The common denominator is not an attitude toward "big government" but rather that the corporation is required to advocate these laws (or absence of law) based on a calculation of the most cost effective way to increase the value of its shares, rather than on a judgment regarding the interests of society or any human subsection of it.
118. For a recent and sympathetic review of the proper role of group speakers, including special interest lobbyists, in our democracy, see Peter Schuck, Against (And For) Madison: An Essay in Praise of Factions, 15 Yale L. & Pol'y Rev. 553 (1997).
119. Greenwood, Akhnai, supra note 30, at 336-37.
120. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
121. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
122. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
123. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
124. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
125. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
126. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
127. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
128. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
129. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
130. See, e.g., Yael Tamir, Liberal Nationalism 117-25 (1993) (discussing problems of boundary setting in liberal state and theory); Walzer, supra note 4, at 31-64 (defining characteristic of group is its ability to define and police its boundaries); Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992); Nathaniel Berman, But the Alternative Is Despair, 106 Harv. L. Rev. 1792, 1842-59 (1993) (discussing approaches to group definition); Richard Briffault, Our Localism, 90 Colum. L. Rev. 1, 73-75 & nn.311-13, 322 (discussing importance of boundaries); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775 (1992) (discussing importance of voting boundaries in determining results); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991) (discussing difficulties of determining group boundaries); Perry Dane, Maps of Sovereignty, 12 Cardozo L. Rev. 959 (1991); Owen Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Jerry Frug, Decentering Centralization, 60 U. Chi. L. Rev. 253 (1993) (arguing that allocation of functions to municipalities be changed to reduce tendency to act like competitive maximizers); Paul Gewirtz, Remedies and Resistence, 92 Yale L.J. 585, 628-31 (1983) (describing importance of school districting boundaries in process of "white flight"); Greenwood, Akhnai, supra note 30, at 336-39 (arguing problem of boundaries is fundamental to democratic theory).
131. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, in After Identity: A Reader in Law and Culture 332, 333, 337-38 (Dan Danielson & Karen Engle eds., 1995).
132. I have in mind such thinkers and leaders as Rousseau, Mazzini, President Wilson, and Ahad Ha-'Am. See generally Ahad Ha-'Am, Slavery in Freedom, in Selected Essays by Ahad Ha-'Am (Leon Simon trans., 1944) (1891) (emancipation in democratic France leads to spiritual slavery due to requirement that Jews adopt French national culture); Jean Jacques Rousseau, The Government of Poland 5-9 (Wilmoore Kendall trans., 1972) (1772); Jean Jacques Rousseau, Social Contract, 16-18 (Charles Frankel trans., 1947) (1762) [hereinafter Rousseau, Social Contract] (describing sovereign); id. at 26-27 (distinguishing will of all and general will). These theorists view a "people" as far more than a collection of persons: it has a "spirit" or a "will" that is different from the wills of individual people, although in the ideal situation, shared by each individual as well. See Ahad Ha-'Am, The Wrong Way, in Nationalism and the Jewish Ethic 34-43 (Hans Kohn ed., 1962) (contrasting unity of "national feeling" to divisiveness of "self-interest"); Hans Kohn, Introduction to Nationalism and the Jewish Ethic, supra, at 1, 16-17 (1962) (describing how Ahad Ha-'Am thought that Jews could find freedom and dignity only as members of a Jewish nation and not through assimilation). For sophisticated modern discussions of the problems of nationalism see generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Tamir, supra note 78, at 60-63 (discussing the origins and development of the tie between state and nation); id. at 79 (describing liberal nationalism as a "direct descendant of cultural pluralism of Herder and the liberal nationalism of Mazzini").
133. I have in mind such thinkers and leaders as Rousseau, Mazzini, President Wilson, and Ahad Ha-'Am. See generally Ahad Ha-'Am, Slavery in Freedom, in Selected Essays by Ahad Ha-'Am (Leon Simon trans., 1944) (1891) (emancipation in democratic France leads to spiritual slavery due to requirement that Jews adopt French national culture); Jean Jacques Rousseau, The Government of Poland 5-9 (Wilmoore Kendall trans., 1972) (1772); Jean Jacques Rousseau, Social Contract, 16-18 (Charles Frankel trans., 1947) (1762) [hereinafter Rousseau, Social Contract] (describing sovereign); id. at 26-27 (distinguishing will of all and general will). These theorists view a "people" as far more than a collection of persons: it has a "spirit" or a "will" that is different from the wills of individual people, although in the ideal situation, shared by each individual as well. See Ahad Ha-'Am, The Wrong Way, in Nationalism and the Jewish Ethic 34-43 (Hans Kohn ed., 1962) (contrasting unity of "national feeling" to divisiveness of "self-interest"); Hans Kohn, Introduction to Nationalism and the Jewish Ethic, supra, at 1, 16-17 (1962) (describing how Ahad Ha-'Am thought that Jews could find freedom and dignity only as members of a Jewish nation and not through assimilation). For sophisticated modern discussions of the problems of nationalism see generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Tamir, supra note 78, at 60-63 (discussing the origins and development of the tie between state and nation); id. at 79 (describing liberal nationalism as a "direct descendant of cultural pluralism of Herder and the liberal nationalism of Mazzini").
134. I have in mind such thinkers and leaders as Rousseau, Mazzini, President Wilson, and Ahad Ha-'Am. See generally Ahad Ha-'Am, Slavery in Freedom, in Selected Essays by Ahad Ha-'Am (Leon Simon trans., 1944) (1891) (emancipation in democratic France leads to spiritual slavery due to requirement that Jews adopt French national culture); Jean Jacques Rousseau, The Government of Poland 5-9 (Wilmoore Kendall trans., 1972) (1772); Jean Jacques Rousseau, Social Contract, 16-18 (Charles Frankel trans., 1947) (1762) [hereinafter Rousseau, Social Contract] (describing sovereign); id. at 26-27 (distinguishing will of all and general will). These theorists view a "people" as far more than a collection of persons: it has a "spirit" or a "will" that is different from the wills of individual people, although in the ideal situation, shared by each individual as well. See Ahad Ha-'Am, The Wrong Way, in Nationalism and the Jewish Ethic 34-43 (Hans Kohn ed., 1962) (contrasting unity of "national feeling" to divisiveness of "self-interest"); Hans Kohn, Introduction to Nationalism and the Jewish Ethic, supra, at 1, 16-17 (1962) (describing how Ahad Ha-'Am thought that Jews could find freedom and dignity only as members of a Jewish nation and not through assimilation). For sophisticated modern discussions of the problems of nationalism see generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Tamir, supra note 78, at 60-63 (discussing the origins and development of the tie between state and nation); id. at 79 (describing liberal nationalism as a "direct descendant of cultural pluralism of Herder and the liberal nationalism of Mazzini").
135. I have in mind such thinkers and leaders as Rousseau, Mazzini, President Wilson, and Ahad Ha-'Am. See generally Ahad Ha-'Am, Slavery in Freedom, in Selected Essays by Ahad Ha-'Am (Leon Simon trans., 1944) (1891) (emancipation in democratic France leads to spiritual slavery due to requirement that Jews adopt French national culture); Jean Jacques Rousseau, The Government of Poland 5-9 (Wilmoore Kendall trans., 1972) (1772); Jean Jacques Rousseau, Social Contract, 16-18 (Charles Frankel trans., 1947) (1762) [hereinafter Rousseau, Social Contract] (describing sovereign); id. at 26-27 (distinguishing will of all and general will). These theorists view a "people" as far more than a collection of persons: it has a "spirit" or a "will" that is different from the wills of individual people, although in the ideal situation, shared by each individual as well. See Ahad Ha-'Am, The Wrong Way, in Nationalism and the Jewish Ethic 34-43 (Hans Kohn ed., 1962) (contrasting unity of "national feeling" to divisiveness of "self-interest"); Hans Kohn, Introduction to Nationalism and the Jewish Ethic, supra, at 1, 16-17 (1962) (describing how Ahad Ha-'Am thought that Jews could find freedom and dignity only as members of a Jewish nation and not through assimilation). For sophisticated modern discussions of the problems of nationalism see generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Tamir, supra note 78, at 60-63 (discussing the origins and development of the tie between state and nation); id. at 79 (describing liberal nationalism as a "direct descendant of cultural pluralism of Herder and the liberal nationalism of Mazzini").
136. I have in mind such thinkers and leaders as Rousseau, Mazzini, President Wilson, and Ahad Ha-'Am. See generally Ahad Ha-'Am, Slavery in Freedom, in Selected Essays by Ahad Ha-'Am (Leon Simon trans., 1944) (1891) (emancipation in democratic France leads to spiritual slavery due to requirement that Jews adopt French national culture); Jean Jacques Rousseau, The Government of Poland 5-9 (Wilmoore Kendall trans., 1972) (1772); Jean Jacques Rousseau, Social Contract, 16-18 (Charles Frankel trans., 1947) (1762) [hereinafter Rousseau, Social Contract] (describing sovereign); id. at 26-27 (distinguishing will of all and general will). These theorists view a "people" as far more than a collection of persons: it has a "spirit" or a "will" that is different from the wills of individual people, although in the ideal situation, shared by each individual as well. See Ahad Ha-'Am, The Wrong Way, in Nationalism and the Jewish Ethic 34-43 (Hans Kohn ed., 1962) (contrasting unity of "national feeling" to divisiveness of "self-interest"); Hans Kohn, Introduction to Nationalism and the Jewish Ethic, supra, at 1, 16-17 (1962) (describing how Ahad Ha-'Am thought that Jews could find freedom and dignity only as members of a Jewish nation and not through assimilation). For sophisticated modern discussions of the problems of nationalism see generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Tamir, supra note 78, at 60-63 (discussing the origins and development of the tie between state and nation); id. at 79 (describing liberal nationalism as a "direct descendant of cultural pluralism of Herder and the liberal nationalism of Mazzini").
137. I have in mind such thinkers and leaders as Rousseau, Mazzini, President Wilson, and Ahad Ha-'Am. See generally Ahad Ha-'Am, Slavery in Freedom, in Selected Essays by Ahad Ha-'Am (Leon Simon trans., 1944) (1891) (emancipation in democratic France leads to spiritual slavery due to requirement that Jews adopt French national culture); Jean Jacques Rousseau, The Government of Poland 5-9 (Wilmoore Kendall trans., 1972) (1772); Jean Jacques Rousseau, Social Contract, 16-18 (Charles Frankel trans., 1947) (1762) [hereinafter Rousseau, Social Contract] (describing sovereign); id. at 26-27 (distinguishing will of all and general will). These theorists view a "people" as far more than a collection of persons: it has a "spirit" or a "will" that is different from the wills of individual people, although in the ideal situation, shared by each individual as well. See Ahad Ha-'Am, The Wrong Way, in Nationalism and the Jewish Ethic 34-43 (Hans Kohn ed., 1962) (contrasting unity of "national feeling" to divisiveness of "self-interest"); Hans Kohn, Introduction to Nationalism and the Jewish Ethic, supra, at 1, 16-17 (1962) (describing how Ahad Ha-'Am thought that Jews could find freedom and dignity only as members of a Jewish nation and not through assimilation). For sophisticated modern discussions of the problems of nationalism see generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Tamir, supra note 78, at 60-63 (discussing the origins and development of the tie between state and nation); id. at 79 (describing liberal nationalism as a "direct descendant of cultural pluralism of Herder and the liberal nationalism of Mazzini").
138. Cf. Robert Cover, Forward: Nomos and Narrative, 97 Harv. L. Rev. 4, 15 (1983), reprinted in Robert Cover, Narrative, Violence and the Law 95, 109 (1992) (describing the radical instability of the paedeic nomos and mitosis of jurisgenerative communities). In partial contrast, the antiliberal nationalists also seek to solve the aggregation problem by creating unity; they differ largely in the degree of unity they see as mandatory and the means they are prepared to use to create and maintain it. Rather than try to draw lines around pre-existing groups, they attempt to create the requisite unity by force (by reeducating, expelling, or simply killing dissidents and deviants); having imposed unity they then see no need for continued democratic or individual freedom (which would simply allow the threatening disagreements to reappear).
139. Cf. Robert Cover, Forward: Nomos and Narrative, 97 Harv. L. Rev. 4, 15 (1983), reprinted in Robert Cover, Narrative, Violence and the Law 95, 109 (1992) (describing the radical instability of the paedeic nomos and mitosis of jurisgenerative communities). In partial contrast, the antiliberal nationalists also seek to solve the aggregation problem by creating unity; they differ largely in the degree of unity they see as mandatory and the means they are prepared to use to create and maintain it. Rather than try to draw lines around pre-existing groups, they attempt to create the requisite unity by force (by reeducating, expelling, or simply killing dissidents and deviants); having imposed unity they then see no need for continued democratic or individual freedom (which would simply allow the threatening disagreements to reappear).
140. Typically, the agreed-upon goal is itself a "universal means" to private ends: the liberal state limits politics by agreeing that whatever else anyone wants, each wants laws that can serve as "[h]edges are set, not to stop [t]ravellers, but to keep them in the way." Thomas Hobbes, Leviathan 239-40 (Richard Tuch ed., Cambridge Univ. Press 1991) (1651); see infra note 112.
141. See, e.g., Robert A. Dahl, Who Governs 5, 218-20, 226-28, 243 (1961) (describing politics as pluralist competition of interest groups over allocation of spoils).
142. For a criticism of Ronald Dworkin asserting that he reads the Constitution to displace politics in all significant value issues, see Michael McConnell, The Importance of Humility in Judicial Review, 65 Fordham L. Rev. 1269 (1997); cf. Greenwood, Beyond Dworkin's Dominions, supra note 30.
143. For a criticism of Ronald Dworkin asserting that he reads the Constitution to displace politics in all significant value issues, see Michael McConnell, The Importance of Humility in Judicial Review, 65 Fordham L. Rev. 1269 (1997); cf. Greenwood, Beyond Dworkin's Dominions, supra note 30.
144. Compare Rousseau, Social Contract, supra note 80 (describing theory of the general will, which seems to assume a consensus among all the individuals involved), with Kenneth J. Arrow, A Difficulty in the Concept of Social Welfare, 58 J. Pol. Econ. 328 (1950) (presenting his "Impossibility Theorem" - it is impossible to construct a consistent set of preferences out of the preferences of individual group members and also satisfy conditions of fairness). Arrow's theorem is also frequently called the "voting paradox." See also Kenneth J. Arrow, Social Choice and Individual Values 46-60 (2d ed. 1963) (proving that when choices are not binary, the outcome of voting will depend on procedural factors such as the order in which choices are voted on).
145. Compare Rousseau, Social Contract, supra note 80 (describing theory of the general will, which seems to assume a consensus among all the individuals involved), with Kenneth J. Arrow, A Difficulty in the Concept of Social Welfare, 58 J. Pol. Econ. 328 (1950) (presenting his "Impossibility Theorem" - it is impossible to construct a consistent set of preferences out of the preferences of individual group members and also satisfy conditions of fairness). Arrow's theorem is also frequently called the "voting paradox." See also Kenneth J. Arrow, Social Choice and Individual Values 46-60 (2d ed. 1963) (proving that when choices are not binary, the outcome of voting will depend on procedural factors such as the order in which choices are voted on).
146. Compare Rousseau, Social Contract, supra note 80 (describing theory of the general will, which seems to assume a consensus among all the individuals involved), with Kenneth J. Arrow, A Difficulty in the Concept of Social Welfare, 58 J. Pol. Econ. 328 (1950) (presenting his "Impossibility Theorem" - it is impossible to construct a consistent set of preferences out of the preferences of individual group members and also satisfy conditions of fairness). Arrow's theorem is also frequently called the "voting paradox." See also Kenneth J. Arrow, Social Choice and Individual Values 46-60 (2d ed. 1963) (proving that when choices are not binary, the outcome of voting will depend on procedural factors such as the order in which choices are voted on).
147. For discussion of the problems of aggregation in the corporation, see Greenwood, supra note 14. For application to the speech problem see infra Part IV.B.
148. See generally Robert Michels, Political Parties 364-71 (Eden & Cedar Paul trans., Free Press 1962) (1911).
149. See Dan C. Heldman & Deborah L. Knight, Unions & Lobbying: The Representation Function (1980) (presenting opinion-poll data indicating the views of union members differs from those of their leaders on a variety of issues).
150. See generally Albert O. Hirschman, Exit, Voice & Loyalty (1970).
151. See also Robert Cover's discussion of the processes of communal mitosis and the imperial virtues in Cover, supra note 81.
152. I neglect here the well-known problems of free-riding, which will lessen the relative strength of some groups without regard to individual preferences. The standard analysis of the problem is Mancur Olson, The Logic of Collective Action 9-16 (1965); see also Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 724-26 (1985) (discussing implications of collective-action problems for political power of various groups). Corporations are unusually likely to avoid free-riding problems associated with lobbying: the corporate management speaks for the group and individuals members ordinarily have little possibility of free-riding. It is a key aspect of corporate law that individual shareholders never have the right to withdraw their funds from the corporation or otherwise to decline to fund particular corporate activities. Therefore, corporate speech does not seem subject to the collective-action problems that may plague competing participants - it is likely to be relatively loud.
153. I neglect here the well-known problems of free-riding, which will lessen the relative strength of some groups without regard to individual preferences. The standard analysis of the problem is Mancur Olson, The Logic of Collective Action 9-16 (1965); see also Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 724-26 (1985) (discussing implications of collective-action problems for political power of various groups). Corporations are unusually likely to avoid free-riding problems associated with lobbying: the corporate management speaks for the group and individuals members ordinarily have little possibility of free-riding. It is a key aspect of corporate law that individual shareholders never have the right to withdraw their funds from the corporation or otherwise to decline to fund particular corporate activities. Therefore, corporate speech does not seem subject to the collective-action problems that may plague competing participants - it is likely to be relatively loud.
154. Despite this difficulty, the exit option is invoked anyway as a legitimation technique. Locke, for example, based the obligation of a dissenter to obey the law on the "tacit consent" evidenced by the dissenter's failure to emigrate. John Locke, Two Treatises of Government 364 (Peter Laslett ed., Cambridge Univ. Press 2d ed. 1970) (1690). The slogan of the prowar camp, "Love it or Leave it," took its power from the same idea: if voice has failed, you should exit, or deem yourself bound by the leadership. And the classic Teiboutian analysis of local governmental politics depends heavily on the ease of exit from local municipalities. See, e.g, Frug, supra note 31, at 28, 41; Frug, supra note 78, at 320-21 (rejecting dichotomous understanding of membership).
155. On the not-for-profit sector generally, see, for example, Henry B. Hansmann, Role of NonProfit Enterprise, 89 Yale L.J. 835 (1980); Henry Hansmann, Why Do Universities Have Endowments, 19 J. Legal Stud. 3 (1990). On historic perceptions of charitable endowments as self-perpetuating bodies with no outside guides, see Evelyn Brody, Charitable Endowments and the Demoralization of Dynasty, 39 Ariz. L. Rev. 873, 918, 921 (1997) (discussing instances of abuse of charitable endowments and of donor restrictions gone wrong).
156. On the not-for-profit sector generally, see, for example, Henry B. Hansmann, Role of NonProfit Enterprise, 89 Yale L.J. 835 (1980); Henry Hansmann, Why Do Universities Have Endowments, 19 J. Legal Stud. 3 (1990). On historic perceptions of charitable endowments as self-perpetuating bodies with no outside guides, see Evelyn Brody, Charitable Endowments and the Demoralization of Dynasty, 39 Ariz. L. Rev. 873, 918, 921 (1997) (discussing instances of abuse of charitable endowments and of donor restrictions gone wrong).
157. On the not-for-profit sector generally, see, for example, Henry B. Hansmann, Role of NonProfit Enterprise, 89 Yale L.J. 835 (1980); Henry Hansmann, Why Do Universities Have Endowments, 19 J. Legal Stud. 3 (1990). On historic perceptions of charitable endowments as self-perpetuating bodies with no outside guides, see Evelyn Brody, Charitable Endowments and the Demoralization of Dynasty, 39 Ariz. L. Rev. 873, 918, 921 (1997) (discussing instances of abuse of charitable endowments and of donor restrictions gone wrong).
158. For a discussion of the "by-product theory," see Olson, supra note 91, at 132-33.
159. See Donald A. Downs, Nazis in Skokie: Freedom, Community, and the First Amendment 32 (1985) (estimating the organization lost 15% of its membership as a result of its position).
160. See NAACP v. Button, 371 U.S. 415, 430-31 (1963) (reviewing protection of group speech and extending it to litigation); NAACP v. Alabama, 357 U.S. 449 (1958) (allowing NAACP to assert rights of its members); cf. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) (reasoning as if, counterfactually, PAC's donors were human citizens). In First National Bank v. Bellotti, 435 U.S. 765 (1978), the Court assumed that not-for-profits could not be distinguished from business corporations for First Amendment purposes. It should now be clear that different corporate forms must be considered separately, not simply lumped together. While the NAACP fits reasonably well the constitutional category of "Committees of Correspondence" - citizens petitioning for redress of grievances - other corporate entities likely do not.
161. While state law clearly directs corporate decision makers to set aside their own views and interests, it extends a good deal of discretion to corporate directors to decide how to fulfill that duty. This unreviewed discretion, in turn, presents the possibility that corporate decision makers will not, in fact, set aside their views, but will instead use corporate assets to pursue their own agenda. State law takes this risk on the reasonable view that strict judicial enforcement of corporate fiduciary duties is likely to cause more problems than it will solve. Nonetheless, such behavior by corporate fiduciaries is clearly a form of theft - that sort of corporate speech no more deserves First Amendment protection than would a thief's claim that he was constitutionally protected in his effort to spend his ill-gotten gains in lobbying for changes in the law of property. This point has been ably argued by Justice White in Bellotti, 435 U.S. at 802 (White, J., dissenting), and by Victor Brudney, Business Corporations and Stockholders' Rights Under the First Amendment, 91 Yale L.J. 235 (1981) (characterizing corporate political speech as managerial speech funded by misappropriation of shareholder funds). This Article, in contrast, focuses on the situation in which corporate managers do act as they are supposed to. Even if state law were perfectly enforceable, First Amendment rights for corporations still would produce perverse results. Of course, profit maximization is not necessarily incompatible with other goals. Corporate managers may be able to persuade themselves (or courts) that other goals are also profitable. See, e.g., Paramount Communications v. Time, 571 A.2d 1140 (Del. 1990) (accepting the board's implausible claim that its goal of "preserving Time Culture" was linked to the interests of shareholders); A.P. Smith Mfg. Co. v. Barlow, 98 A.2d 581 (N.J. 1953) (implausibly defending charitable contribution as profit maximizing); discussion infra p. 1050. Any significant departure from profit maximizing norms, however, is likely to be severely punished by both the capital and the product market. See infra Part IV. D.
162. See, e.g., Eric W. Orts, Beyond Shareholders: Interpreting Corporate Constituency Statutes, 61 Geo. Wash. L. Rev. 14 (1992) (examining whether corporate directors may consider nonshareholder interests in corporate decision making); Symposium, Corporate Malaise - Stakeholder Statues: Cause or Cure, 21 Stetson L. Rev. 1-279 (1991).
163. See, e.g., Eric W. Orts, Beyond Shareholders: Interpreting Corporate Constituency Statutes, 61 Geo. Wash. L. Rev. 14 (1992) (examining whether corporate directors may consider nonshareholder interests in corporate decision making); Symposium, Corporate Malaise - Stakeholder Statues: Cause or Cure, 21 Stetson L. Rev. 1-279 (1991).
164. See generally William W. Bratton, Jr., The "Nexus of Contracts" Corporation: A Critical Appraisal, 74 Cornell L. Rev. 407 (1989).
165. Theorists, of course, have had no trouble generating stories, of varying degrees of persuasiveness, to justify disenfranchisement of nonshareholder constituencies. The most successful of these accounts focus on the comparative risk borne by shareholders and other stakeholders: under some circumstances, including an unrealistically fluid labor market, shareholders are the corporation's residual risk bearer and least able to rely on contract protections. For current purposes, however, the important fact is that a story must be told, not how successful the story is; the issue of why the franchise is restricted to shareholders arises only after theorists or state legislatures have abandoned the notion that a corporation is its shareholders and no more. If the corporation were just its shareholders, the others would be outsiders and there would be no need to explain why they are not entitled to vote.
166. See infra Part IV.D.1. and note 128. Portfolio investors differ from the classic fictional shareholder in that they are invested in a diversified portfolio of publicly traded securities rather than solely in the stock of the firm in question. Like classic fictional shareholders, they are indifferent among projects, places, people and the like. See infra note 132. They differ however in that they also are indifferent among firms: the diversified portfolio is not made better off if U.S. West improves its situation at the expense of Bell Atlantic, since it owns both. From the perspective of the classic fictional shareholder, specific projects of a corporation appear as no more than entirely fungible projected cash flows; the portfolio investor takes this perspective one step further - each corporation is no more than a fungible moment on the capital investment frontier. Accordingly, the difference is this: a classic fictional shareholder is seen as willing to have the corporation abandon factories, products or employees at any time in a constant chase for the optimum risk-reward ratio, but is presumed to be irrationally committed to its investment in the corporation. In contrast, the portfolio investor is no more committed to a particular stock than the corporation is to a particular investment. It is neither a short term investor nor a long term one but rather time indifferent: it shifts any time a better opportunity appears, and stays as long as the security meets its requirements. For the purposes of this Article, the distinction between the two types of shareholder is rarely important - although they will have different views on some significant political issues (portfolio investors should strongly oppose corporate attempts to use the legal system to bash other publicly traded corporations) both versions will happily externalize costs onto nonsecuritized beings such as the people who hold the shares. However, corporate managements often will have strong preference for the classic model, which views them as important, over the portfolio version, which views management as fungible. For detailed discussion and further citation, see Greenwood, supra note 14, at 1056-89; Henry T.C. Hu, New Financial Products, the Modern Process of Financial Innovation, and the Puzzle of Shareholder Welfare, 69 Tex. L. Rev. 1273 (1991).
167. That is, stocks are relatively fungible. An investor who dislikes a corporation's action in one sphere should be able to find another generally similar investment differing only in the offensive characteristic. See, e.g., Ralph Winter, State Law, Shareholder Protection and the Theory of the Corporation, 6 J. Legal Stud. 251 (1977) (relying on ease of exit to argue that management and shareholders will be aligned even in relatively immaterial matters). Unfortunately, as I argue below, corporate law mandates that all corporations take systematically similar positions on political issues, so the corporate investor cannot simply chose another stock with different politics.
168. That is, the transaction costs of exit are quite low. To abandon your church, or even the NAACP, may require substantial changes in self-understanding and/or social ties. To abandon a publicly traded corporate investment requires no more than calling your broker and the possibility of paying deferred capital gains tax.
169. First Nat'l Bank v. Bellotti, 435 U.S. 765, 785 n.22, 791 n.30 (1978). Some scholars argue that money distorts the political process; since corporations have more of it, they are particularly dangerous distorters. On money as speech generally, see, for example, James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 Calif. L. Rev. 1416 (1992); Steven Shiffren, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 Nw. U. L. Rev. 1212, 1281 (1983) (arguing that some commercial speech deserves First Amendment protection); Mark Tushnet, Corporations and Free Speech, in The Politics of Law 253 (David Kairys ed., 1982); Wright, supra note 49 (arguing that campaign finance reform promotes First Amendment values); on specifically corporate money in political campaigns, see Note, supra note 19 (arguing that granting corporations free-speech rights does not serve any free-speech interests).
170. First Nat'l Bank v. Bellotti, 435 U.S. 765, 785 n.22, 791 n.30 (1978). Some scholars argue that money distorts the political process; since corporations have more of it, they are particularly dangerous distorters. On money as speech generally, see, for example, James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 Calif. L. Rev. 1416 (1992); Steven Shiffren, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 Nw. U. L. Rev. 1212, 1281 (1983) (arguing that some commercial speech deserves First Amendment protection); Mark Tushnet, Corporations and Free Speech, in The Politics of Law 253 (David Kairys ed., 1982); Wright, supra note 49 (arguing that campaign finance reform promotes First Amendment values); on specifically corporate money in political campaigns, see Note, supra note 19 (arguing that granting corporations free-speech rights does not serve any free-speech interests).
171. First Nat'l Bank v. Bellotti, 435 U.S. 765, 785 n.22, 791 n.30 (1978). Some scholars argue that money distorts the political process; since corporations have more of it, they are particularly dangerous distorters. On money as speech generally, see, for example, James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 Calif. L. Rev. 1416 (1992); Steven Shiffren, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 Nw. U. L. Rev. 1212, 1281 (1983) (arguing that some commercial speech deserves First Amendment protection); Mark Tushnet, Corporations and Free Speech, in The Politics of Law 253 (David Kairys ed., 1982); Wright, supra note 49 (arguing that campaign finance reform promotes First Amendment values); on specifically corporate money in political campaigns, see Note, supra note 19 (arguing that granting corporations free-speech rights does not serve any free-speech interests).
172. There is one significant exception: the portfolio investors. Diversified portfolio investors have a different interest than an undiversified fictional shareholder, and also often have market power sufficient to enforce their views. See supra note 101.
173. The reference is to the "utility monster" problem in utilitarian theory. Imagine a person who derives extraordinary pleasure from seeing others made miserable. Under aggregate utility maximizing views, if the sadist's utility is sufficient, we ought to organize society to satisfy him. Egalitarian utilitarian views have a similar problem with a different type of utility monster: the individual who needs enormous resources to derive even a minimal degree of satisfaction, who is likely to be massively miserable without a steady supply of Beluga caviar and Armani suits. If the utilitarian's goal is to equalize utility, this monster can absorb all of the society's resources. The corporation is a monster in a related sense: because it seeks to maximize share value without regard for the costs to any other value, left unrestrained it too will organize all society to serve its own needs.
174. See supra Part III.A (discussing the problem of leaders who claim to speak for a group but hide the views of the group's minority members).
175. Securities Exchange Act Rule 14a-8(c)(7), (c)(5), 17 C.F.R. 240.14a-8(c)(7), (c)(5) (1998) (allowing corporations to exclude from proxy statements shareholder proposals "deal[ing] with a matter relating to the company's ordinary business operations" or affecting less than 5% of company's assets, net earnings, and gross sales). Virtually any lobbying directed towards potentially profitable activities of the corporation will fit within this rubric, even if it also implicates significant public policy issues. See, e.g., New York City Employees' Retirement Sys. v. SEC, 843 F. Supp. 858, 863-66 (S.D.N.Y. 1994) (discussing history of SEC action on subject), rev'd, 45 F.3d 7 (2d Cir. 1995); Pillsbury v. Honeywell, 191 N.W.2d 406 (Minn. 1971), criticized in Credit Bureau v. Credit Bureau, 290 A.2d 691 (Del. 1972), distinguished in Conservative Caucus v. Chevron, 525 A.2d 569, 572 (Del. Ch. 1987). The issues remain controversial. See discussion in Greenwood, supra note 14, at 1039, and the SEC's latest revisions. SEC Release No. 34-40018, available in 1998 SEC LEXIS 1001.
176. Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985) (holding that board must make reasonable inquiry and recommendation before allowing shareholder vote on proposed merger and may not simply allow shareholders to decide).
177. McQuade v. Stoneham & McGraw, 263 N.Y. 323 (1934). The rule has been relaxed in close corporate contexts where the managers, directors and shareholders are largely the same people, but I am aware of no attempts to modify it in publicly traded firms.
178. By 1990, institutions owned 53% of the outstanding corporate equity. Bernard S. Black, Agents Watching Agents: The Promise of Institutional Investor Voice, 39 UCLA L. Rev. 811, 827 (1992). The percentage has increased since then with the rapid growth of mutual funds.
179. This argument is similar to Hobbes's argument that whatever men want, they all want to live; to Locke's argument that whatever citizens want, they all want the state to protect life, liberty, and property; and to Rawls's argument that whatever else persons want, they are all better off with more "primary goods." Hobbes, supra note 82, at 188, 192; Locke, supra note 92, at 348-49, 368-69, 371; John Rawls, Theory of Justice 93 (1971) [hereinafter Rawls,
180. This argument is similar to Hobbes's argument that whatever men want, they all want to live; to Locke's argument that whatever citizens want, they all want the state to protect life, liberty, and property; and to Rawls's argument that whatever else persons want, they are all better off with more "primary goods." Hobbes, supra note 82, at 188, 192; Locke, supra note 92, at 348-49, 368-69, 371; John Rawls, Theory of Justice 93 (1971) [hereinafter Rawls, Theory]; John Rawls, Social Unity and Primary Goods, in Utilitarianism and Beyond 159, 163 (Amartya Sen & Bernard Williams eds., 1982) (using index of primary goods as a public basis for interpersonal comparison). The argument is wrong in each case: human ends are too diverse for a universal means. (In Rawls's more recent work, he has emphasized universal agreement not on universal means but rather on a constitutional process. See John Rawls, Political Liberalism 127 (1993). Although discussion is beyond the scope of this paper, I suspect that similar problems remain: processes cannot be determined independent of goals any more than other means may be distributed without regard to ends.) For further discussion, see, for example, Charles Taylor, The Diversity of Goods, in Utilitarianism and Beyond, supra, at 129, 142 (discussing multiplicity of moral realm); Bernard Williams, Conflicts of Values, in Moral Luck (1981) (discussing conflicting moral obligations); Bernard Williams, Rawls and Pascal's Wager, in Moral Luck, supra, at 96 (discussing difficulties of assuming a universally useful set of primary goods).
181. This argument is similar to Hobbes's argument that whatever men want, they all want to live; to Locke's argument that whatever citizens want, they all want the state to protect life, liberty, and property; and to Rawls's argument that whatever else persons want, they are all better off with more "primary goods." Hobbes, supra note 82, at 188, 192; Locke, supra note 92, at 348-49, 368-69, 371; John Rawls, Theory of Justice 93 (1971) [hereinafter Rawls, Theory]; John Rawls, Social Unity and Primary Goods, in Utilitarianism and Beyond 159, 163 (Amartya Sen & Bernard Williams eds., 1982) (using index of primary goods as a public basis for interpersonal comparison). The argument is wrong in each case: human ends are too diverse for a universal means. (In Rawls's more recent work, he has emphasized universal agreement not on universal means but rather on a constitutional process. See John Rawls, Political Liberalism 127 (1993). Although discussion is beyond the scope of this paper, I suspect that similar problems remain: processes cannot be determined independent of goals any more than other means may be distributed without regard to ends.) For further discussion, see, for example, Charles Taylor, The Diversity of Goods, in Utilitarianism and Beyond, supra, at 129, 142 (discussing multiplicity of moral realm); Bernard Williams, Conflicts of Values, in Moral Luck (1981) (discussing conflicting moral obligations); Bernard Williams, Rawls and Pascal's Wager, in Moral Luck, supra, at 96 (discussing difficulties of assuming a universally useful set of primary goods).
182. This argument is similar to Hobbes's argument that whatever men want, they all want to live; to Locke's argument that whatever citizens want, they all want the state to protect life, liberty, and property; and to Rawls's argument that whatever else persons want, they are all better off with more "primary goods." Hobbes, supra note 82, at 188, 192; Locke, supra note 92, at 348-49, 368-69, 371; John Rawls, Theory of Justice 93 (1971) [hereinafter Rawls, Theory]; John Rawls, Social Unity and Primary Goods, in Utilitarianism and Beyond 159, 163 (Amartya Sen & Bernard Williams eds., 1982) (using index of primary goods as a public basis for interpersonal comparison). The argument is wrong in each case: human ends are too diverse for a universal means. (In Rawls's more recent work, he has emphasized universal agreement not on universal means but rather on a constitutional process. See John Rawls, Political Liberalism 127 (1993). Although discussion is beyond the scope of this paper, I suspect that similar problems remain: processes cannot be determined independent of goals any more than other means may be distributed without regard to ends.) For further discussion, see, for example, Charles Taylor, The Diversity of Goods, in Utilitarianism and Beyond, supra, at 129, 142 (discussing multiplicity of moral realm); Bernard Williams, Conflicts of Values, in Moral Luck (1981) (discussing conflicting moral obligations); Bernard Williams, Rawls and Pascal's Wager, in Moral Luck, supra, at 96 (discussing difficulties of assuming a universally useful set of primary goods).
183. This argument is similar to Hobbes's argument that whatever men want, they all want to live; to Locke's argument that whatever citizens want, they all want the state to protect life, liberty, and property; and to Rawls's argument that whatever else persons want, they are all better off with more "primary goods." Hobbes, supra note 82, at 188, 192; Locke, supra note 92, at 348-49, 368-69, 371; John Rawls, Theory of Justice 93 (1971) [hereinafter Rawls, Theory]; John Rawls, Social Unity and Primary Goods, in Utilitarianism and Beyond 159, 163 (Amartya Sen & Bernard Williams eds., 1982) (using index of primary goods as a public basis for interpersonal comparison). The argument is wrong in each case: human ends are too diverse for a universal means. (In Rawls's more recent work, he has emphasized universal agreement not on universal means but rather on a constitutional process. See John Rawls, Political Liberalism 127 (1993). Although discussion is beyond the scope of this paper, I suspect that similar problems remain: processes cannot be determined independent of goals any more than other means may be distributed without regard to ends.) For further discussion, see, for example, Charles Taylor, The Diversity of Goods, in Utilitarianism and Beyond, supra, at 129, 142 (discussing multiplicity of moral realm); Bernard Williams, Conflicts of Values, in Moral Luck (1981) (discussing conflicting moral obligations); Bernard Williams, Rawls and Pascal's Wager, in Moral Luck, supra, at 96 (discussing difficulties of assuming a universally useful set of primary goods).
184. This argument is similar to Hobbes's argument that whatever men want, they all want to live; to Locke's argument that whatever citizens want, they all want the state to protect life, liberty, and property; and to Rawls's argument that whatever else persons want, they are all better off with more "primary goods." Hobbes, supra note 82, at 188, 192; Locke, supra note 92, at 348-49, 368-69, 371; John Rawls, Theory of Justice 93 (1971) [hereinafter Rawls, Theory]; John Rawls, Social Unity and Primary Goods, in Utilitarianism and Beyond 159, 163 (Amartya Sen & Bernard Williams eds., 1982) (using index of primary goods as a public basis for interpersonal comparison). The argument is wrong in each case: human ends are too diverse for a universal means. (In Rawls's more recent work, he has emphasized universal agreement not on universal means but rather on a constitutional process. See John Rawls, Political Liberalism 127 (1993). Although discussion is beyond the scope of this paper, I suspect that similar problems remain: processes cannot be determined independent of goals any more than other means may be distributed without regard to ends.) For further discussion, see, for example, Charles Taylor, The Diversity of Goods, in Utilitarianism and Beyond, supra, at 129, 142 (discussing multiplicity of moral realm); Bernard Williams, Conflicts of Values, in Moral Luck (1981) (discussing conflicting moral obligations); Bernard Williams, Rawls and Pascal's Wager, in Moral Luck, supra, at 96 (discussing difficulties of assuming a universally useful set of primary goods).
185. This argument is similar to Hobbes's argument that whatever men want, they all want to live; to Locke's argument that whatever citizens want, they all want the state to protect life, liberty, and property; and to Rawls's argument that whatever else persons want, they are all better off with more "primary goods." Hobbes, supra note 82, at 188, 192; Locke, supra note 92, at 348-49, 368-69, 371; John Rawls, Theory of Justice 93 (1971) [hereinafter Rawls, Theory]; John Rawls, Social Unity and Primary Goods, in Utilitarianism and Beyond 159, 163 (Amartya Sen & Bernard Williams eds., 1982) (using index of primary goods as a public basis for interpersonal comparison). The argument is wrong in each case: human ends are too diverse for a universal means. (In Rawls's more recent work, he has emphasized universal agreement not on universal means but rather on a constitutional process. See John Rawls, Political Liberalism 127 (1993). Although discussion is beyond the scope of this paper, I suspect that similar problems remain: processes cannot be determined independent of goals any more than other means may be distributed without regard to ends.) For further discussion, see, for example, Charles Taylor, The Diversity of Goods, in Utilitarianism and Beyond, supra, at 129, 142 (discussing multiplicity of moral realm); Bernard Williams, Conflicts of Values, in Moral Luck (1981) (discussing conflicting moral obligations); Bernard Williams, Rawls and Pascal's Wager, in Moral Luck, supra, at 96 (discussing difficulties of assuming a universally useful set of primary goods).
186. Of course, even foreigners are likely to feel some solidarity with Americans or concern with "spillover" effects beyond American borders that may lead them as well to balance other goals against share-value maximization.
187. Paramount Communications, Inc. v. Time, Inc., 571 A.2d 1140 (Del. 1989) (allowing management to act on its understanding of shareholder interest - rejecting an acquisition offer - despite overwhelming evidence that shareholders viewed their interests differently). Van Gorkom, 488 A.2d at 873 (barring Board from simply deferring to shareholder views).
188. See Meir Dan-Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 Cal. L. Rev. 1229 (1991) [hereinafter Dan Cohen, Freedoms of Collective Speech].
189. See Meir Dan-Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 Cal. L. Rev. 1229 (1991) [hereinafter Dan Cohen, Freedoms of Collective Speech].
190. See, e.g., David Kennedy, Spring Break, 63 Tex. L. Rev. 1377, 1378-79, 1382, 1385-89, 1400, 1404-05, 1412-15 (1985) (discussing ambiguities of international human rights lawyer's role in representing client and the "boundary separating our mission from its object").
191. Model Rules of Professional Conduct preamble (1997); cf. id. Canons 5, 7; Model Code of Professional Responsibility EC 7-8 (1997) ("[T]he decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client."). Since the corporate agent has no client other than a legal fiction, in the corporation there is no one who can legitimately decide to "forego legally available objectives or methods" of lobbying because of nonprofit maximizing factors.
192. Model Rules of Professional Conduct Rule 1.2 (distinguishing, in general, between the objective (for client) and the means to attain the objective (for attorney) and warning of difficulty in drawing a bright-line distinction).
193. See id. Rules 1.13, 1.14 (respecting difficulties of receiving instructions from collective and disabled clients).
194. See Ronald Dworkin, Life's Dominions (1993) (discussing problems of abortion and euthanasia).
195. Philosophers (and economists, medical ethicists, and professionals generally) often assume that people have a consistent set of preferences, goals, or values, which, if only they worked hard enough, they could identify and articulate. See Rawls, Theory, supra note 112, at 20 (describing process of reaching reflective equilibrium). My own view, however, is that reflective equilibrium is a myth: if we work hard enough, we will discover that we have a number of inconsistent preferences, goals, and values that do not reach equilibrium and cannot be set in a cardinal order but rather fluctuate chaotically, like a lemming population's density. The tragedy - or human reality - of the polynomic community is fractally replicated in each of our own individual sets of values. See Greenwood, Beyond Dworkin's Dominions, supra note 30, at 561-63, 576, 607-30 & nn.15-18, 77; see also Cover, supra note 81 (describing polynomic community as the source of law); Amos Tversky & Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 Sci. 1124 (1974) (discussing inconsistencies in human decisionmaking). See generally Isaiah Berlin, Introduction to Philosophy in an Age of Pluralism (James Tully ed., 1994) (arguing that incompatibility of values determines the outcome of human behavior).
196. In the classic writings, corruption was often discussed as the problem of "virtue," that is, how to avoid corruption, and in technocratic literature, referred to as "professionalism".
197. Greenwood, supra note 14, at 1025.
198. See generally Cover, supra note 81.
199. See supra note 121.
200. See supra note 101; infra note 132.
201. Corporate law is thus structurally parallel to the political philosophy of Hobbes. Cf. supra note 82. Because all shareholders (citizens) share a common goal, maximization of value (preservation of life), management (government) may proceed in their interests without consulting them and an outside observer may judge the competence and fidelity of the governors without any input from the governed.
202. Portfolio investors are largely indifferent to interfirm competition: by holding securities of both competing firms, they assure that they obtain the same results regardless of which firm wins out. If cable modems win out over telephone ones, the Baby Bells will suffer, but AT&T/TCI will gain. If the reverse is true, the winners will be reversed. But an investor who holds both Bells and AT&T has the same results either way. In effect, portfolio investors treat the entire range of publicly traded firms as if it were a single conglomerate. In contrast, the undiversified investor of conventional corporate law takes the distinction among firms quite seriously.
203. See Greenwood, supra note 14.
204. The key difference between the two versions of the fictional shareholder is that the portfolio investor is also indifferent as to which publicly traded company does it.
205. Compare the discussion of the situated self in Will Kymlicka, Liberalism, Community, and Culture 166-78 (1989) (discussing importance of participation in a particular cultural community); Michael J. Sandel, Democracy's Discontent 13-17 (1996) (discussing the implausibility of the image of the unencumbered self); Tamir, supra note 78, at 32-34, 38-42 (discussing cultural and national affiliation as constitutive of personhood); Charles Taylor, Sources of the Self: The Making of the Modern Identity 504-06 (1989) (criticizing liberal theory for placing individuals outside of context).
206. Compare the discussion of the situated self in Will Kymlicka, Liberalism, Community, and Culture 166-78 (1989) (discussing importance of participation in a particular cultural community); Michael J. Sandel, Democracy's Discontent 13-17 (1996) (discussing the implausibility of the image of the unencumbered self); Tamir, supra note 78, at 32-34, 38-42 (discussing cultural and national affiliation as constitutive of personhood); Charles Taylor, Sources of the Self: The Making of the Modern Identity 504-06 (1989) (criticizing liberal theory for placing individuals outside of context).
207. Compare the discussion of the situated self in Will Kymlicka, Liberalism, Community, and Culture 166-78 (1989) (discussing importance of participation in a particular cultural community); Michael J. Sandel, Democracy's Discontent 13-17 (1996) (discussing the implausibility of the image of the unencumbered self); Tamir, supra note 78, at 32-34, 38-42 (discussing cultural and national affiliation as constitutive of personhood); Charles Taylor, Sources of the Self: The Making of the Modern Identity 504-06 (1989) (criticizing liberal theory for placing individuals outside of context).
208. In a competitive financial market, future income can readily be converted into present income and vice versa. Accordingly, corporate managers should disregard the timing of the income they produce, or, looked at another way, treat their investors as if they were time indifferent or eternal. Similarly, risk levels can easily be adjusted by varying the ratio of equity investments to risk-free Treasury Bills held in a portfolio; accordingly, managers should act as if their investors were risk neutral. Lack of commitment stems directly from the picture of a shareholder as having no other relationship to the company and caring only about returns to share ownership, rather than, for example, the effects on the family lives of employees. For an investor interested only in the returns from a particular security, of course, the project that generates the returns is a matter of importance only insofar as it is more or less likely to generate the promised return: holding the risk-reward ratio constant, the fictional shareholder is entirely indifferent among different projects, factories, employees or products. All those things appear to the fictional shareholder only as the present discounted value of future income streams, and money is entirely fungible. And if the risk-reward ratio is not constant, the fictional shareholder will always prefer the better ratio, with no regrets for factories closed, jobs relocated, or products abandoned. Real people, however, will always have some identification with the human beings affected by corporate decisions, even if attenuated. Fictional shareholders, then, unlike human beings, are fully mobile, entirely uncommitted, and effectively eternal. For further discussion, see generally Greenwood, supra note 14; Hu, supra note 101, at 1277, 1282 n.39, 1285 (describing three different understandings of how to act in shareholder interests); Henry T.C. Hu, Risk, Time, and Fiduciary Principles in Corporate Investment, 38 UCLA L. Rev. 277, 295-306, 355-66 (1990) (discussing differing understandings of the maximization of shareholder wealth); Kuttner, supra note 3, at 59-64 (contending that markets free-ride on preexisting nonmarket norms of behavior).
209. Cf. Lewis Carroll, Alice Through the Looking Glass 86 (1941) ("The rule is, jam tomorrow and jam yesterday - but never jam to-day."). A pension fund is always investing for a future that never arrives. See Greenwood, supra note 14, at 1082-83.
210. Cf. Lawrence E. Mitchell, A Critical Look at Corporate Governance, 45 Vand. L. Rev. 1263, 1301-17 (1992) (arguing that corporate boards should be recast as self-perpetuating mediating groups among the various corporate constituencies).
211. Indeed, in the case of the largest of the institutional investors - the pension funds - it would be clearly illegal for the fund manager to allow fund beneficiaries to direct that the fund abandon the pursuit of maximum profit (for the fund) even if beneficiaries saw the matter differently. ERISA bars pension funds from, for example, weighing the beneficiaries' interest in a larger retirement against their interests in a present job, even when those interests are in clear conflict and the actual humans involved might have strong views. See 29 U.S.C. § 1104(a) (1994) (setting forth the duties of fiduciaries under ERISA). A pension fund, therefore, is required to support profit-maximizing layoffs, even if the layoffs cause financial or emotional ruin to its beneficiaries. See Greenwood, supra note 14, at 1068-69.
212. This overstates the investor's involvement and thus understates the materiality problem: not all of an investment in R.J.R. Nabisco, for example, is attributable to the cigarette business.
213. See, e.g., Steve Hemmerick, Anti-Tobacco Campaign Hits a Snag, 19 Pensions & Investments, Mar. 4, 1991, at 3 (reporting that Ca1PERS Board views divestiture as a breach of its duty to maximize returns for future pensioners - presumably including future smokers). As one might imagine, given the nature of the market they supply, tobacco companies have long been extremely profitable and their stocks are often cited as having been among the best choices a profit-maximizing investor could make. (This latter fact might suggest that tobacco boycotters have actually had an effect, driving the stock price below where it would be on a purely profit-seeking rational analysis. Given the pressures on institutional investors to ignore moral or political considerations, I think it more likely that the market has both consistently underestimated either the industry's ability to extract more value from its basic franchise - perhaps because of the persuasiveness of tobacco industry arguments that smoking is not addictive - or that it has consistently overestimated the ability of the political system to restrain the future pursuit of profit through nicotine - perhaps because of too unquestioning an acceptance of the marketplace of ideas picture of political debate. See, e.g., NatWest Securities, Tobacco Industries Report, Feb. 24, 1998 (noting that addictiveness of cigarettes assures customer loyalty, ability to pass on fines, and profitability, but expressing concern that lawsuits will bankrupt firms).
214. If "socially conscious" investors avoid a stock in sufficient numbers to effect its price, pure profit maximizers will recognize an arbitrage opportunity: a stock priced below the expected value of its future financial returns offers an above-market return. These professionals will purchase it until its price is bid back up to the financially "correct" price. The "socially conscious" investor, then, will have suffered a personal loss, but will have sent no message to management and had no effect on the company, which will continue to see its stock trade based on market estimates of future returns. The only significant difference will be that the new shareholder base will be more supportive of management's profit pursuing goals. In contrast, a firm that deliberately departs from profit maximization will be punished brutally. In any reasonably competitive product market, it will be at a disadvantage because it will be, by hypothesis, a high-cost producer. In the financial market, the same institutional investors will have a fiduciary (and market driven) responsibility to sell the firm's stock because more profitable opportunities are available. This will not only reduce share value (and increase the cost of capital, thus further lessening competitiveness) but also expose it to hostile takeover, since its stock value can be increased easily by returning it to profitmaximizing norms. The combination of these effects should assure that few publicly traded firms will deliberately abandon profit maximization as a goal, regardless of the personal preferences of managers or individual shareholders, so long as a significant part of the investing market (the portfolio investors) sees itself as bound to profit maximize.
215. Alternatively they may be fired or branded as traitors for placing social interests above the company's.
216. See Greenwood, supra note 14, at 1090-93 (using Bell v. Maryland, 378 U.S. 226 (1964), to illustrate how a company managed by nonracists, owned entirely by desegregationists, could end up enforcing Jim Crow simply by each participant doing what they are supposed to do).
217. See Allan Sloan, Corporate Killers, Newsweek, Feb. 26, 1996, at cover page (showing "mug shots" of major corporate CEOs responsible for mass layoffs).
218. Many human investors, of course, do care about pollution even when it does not affect them directly, or so one might infer from the heavy support for the environmental protection laws found by the pollsters. That concern, however, will be washed out and will not affect the fictional shareholder or its agents.
219. See A.P. Smith Mfg. Co. v. Barlow, 98 A.2d 581, 583 (N.J. 1953) (allowing firm to make charitable contribution because it allegedly was profitable to do so).
220. See Walzer, supra note 4, at 95-103, 282-84, 291-303 (arguing that money should not be allowed to influence government action); supra note 66 (discussing the exclusion of corporate money from political campaigns in other countries).
221. For examples of essays basing First Amendment analysis on this value, see C. Edwin Baker, Human Liberty and Freedom of Speech (1989); Thomas I. Emerson, The System of Freedom of Expression (1970).
222. For examples of essays basing First Amendment analysis on this value, see C. Edwin Baker, Human Liberty and Freedom of Speech (1989); Thomas I. Emerson, The System of Freedom of Expression (1970).
223. For contrasting views, see sources cited supra note 80.
224. See Noam J. Zohar, Midrash: Amendment through the Molding of Meaning, in Responding to Imperfection: The Theory & Practice of Constitutional Amendment 307-18 (Sanford Levinson ed., 1995) (discussing claim that dissents are preserved in order to encourage further debate); Greenwood, Akhnai, supra note 30, at 327-33 (arguing that the legal system can stay the same only by changing).
225. See Meir Dan-Cohen, Rights, Persons, and Organzations: A Legal Theory for Bureaucratic Society (1986); Dan-Cohen, Freedoms of Collective Speech, supra note 115.
226. See Meir Dan-Cohen, Rights, Persons, and Organzations: A Legal Theory for Bureaucratic Society (1986); Dan-Cohen, Freedoms of Collective Speech, supra note 115.
227. I discuss separately the rights of the listener. See infra Part V.B.4.
228. See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 21-22, 24-26 (1976) (stating that Eichmann believed himself not guilty in the sense of the indictment because he had no base motives and was a law-abiding citizen executing legal orders to the best of his ability; in Arendt's view, he was perfectly normal); cf. Stanley Milgram, Some Conditions of Obedience and Disobedience to Authority, 18 Hum. Rel. 55 (1965) (stating that experimental subjects were willing to administer apparently painful and near-fatal electrical shocks when told to do so by an authority figure). But see Arendt, supra, at 231-33 (observing that some people were able to act decently even in the midst of total evil).
229. See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 21-22, 24-26 (1976) (stating that Eichmann believed himself not guilty in the sense of the indictment because he had no base motives and was a law-abiding citizen executing legal orders to the best of his ability; in Arendt's view, he was perfectly normal); cf. Stanley Milgram, Some Conditions of Obedience and Disobedience to Authority, 18 Hum. Rel. 55 (1965) (stating that experimental subjects were willing to administer apparently painful and near-fatal electrical shocks when told to do so by an authority figure). But see Arendt, supra, at 231-33 (observing that some people were able to act decently even in the midst of total evil).
230. In the corporate-law context, granting rights to agents independent of the principal is simply a fancy way of saying that top corporate management will be granted a license to use corporate funds to promote their own views. Corporate-law theorists and courts have debated the proper ownership of corporate funds, some contending that those funds can be viewed in a simple way as belonging to shareholders, and others contending that other participants in the "nexus of contracts" may have an equally strong claim. See, e.g., Greenwood, supra note 14, at 1023-25 n.6, 1034-35 n.24 (comparing the two sides of the debate). However, virtually everyone agrees that directors and top management have no right to use corporate property for their own personal purposes. Accordingly, it should be uncontroversial that managerial use of corporate funds to promote managerial political views is both a violation of corporate-law norms and unprotected by the First Amendment. See supra note 97.
231. 3 Boswell's Life of Johnson 19 (L. Powell ed., 1934) (1791). Law professors, of course, are not paid, at least directly, for writing law review articles.
232. See Salman Rushdie, The Wizard of Oz 14-16 (1992) (stating that The Wizard of Oz had multiple writers and directors, making it "that will-o-the-wisp of modern critical theory: the authorless text" and that it is unclear who is responsible for the famous phrase, "There's no place like home.").
233. But see Randall Bezanson, Institutional Speech, 80 Iowa L. Rev. 735 (1995) (arguing that institutional speech is "speakerless" and less deserving of constitutional protection).
234. This argument was eloquently made by Brudney, supra note 97.
235. The agents' autonomy, in contrast, would be the key issue if the question were not the agents' speech rights but rather the agents' right to sell their work product or labor power. That analysis, however, comes under not the First Amendment but rather Lochner.
236. Of course, the very same work product, produced on the author's behalf, would be entirely protected.
237. See supra p. 1001.
238. Alexander Meiklejohn, supra note 12, at 24-27 (explaining that the First Amendment protects against the mutilation of thoughts so that "when men govern themselves, it is they - and no one else - who must pass judgment upon unwisdom and unfairness and danger").
239. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that the primary function of judicial constitutional decision making should be to protect integrity of democratic political process). Much legal theory since the Legal Realists has concentrated on breaking down the state/society distinction, principally by arguing that the "background" of civil society cannot be understood independently of the legal regime that creates and channels it. In the First Amendment area, this project has only just begun. See, e.g., Owen Fiss, The Irony of Free Speech 2-4 (1996); Cass Sunstein, Democracy and the Problem of Free Speech 16 (1995); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 379-87; Fred Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 949-51 (1993) (taking seriously the metaphor of a free market of ideas and arguing that, as in New Deal economics, regulation rather than abstract rights may be necessary to promote liberty against the threats of legally sanctioned private power). But see Kathleen Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 955 (1995) (reviewing debate and rejecting metaphor of market for speech on autonomy grounds). This Article contends that granting abstract free speech rights to corporations does not promote the liberty of the real individuals involved and that corporations must be understood as part of the state (legal) system that creates them rather than somehow existing "before" it. Doctrinally, however, the Article stands or falls independently of the larger Realist critique of First Amendment jurisprudence: one need not reject the notion of a private sphere to consider whether corporate speech properly is considered part of it. Nor do I see any need for present purposes to enter into the debate regarding the continued usefulness of the Footnote Four categories, see, e.g., Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) (arguing that the Carolene formula of "discrete and insular minorities" must be reappraised). Similarly, I seek to evade the ongoing debate between libertarian and egalitarian concepts of the First Amendment, see, e.g., Fiss, supra, at 15 (describing the conflict between liberty and equality); Fred Schauer, Judicial Review of the Devices of Democracy, 94 Colum. L. Rev. 1326, 1341 (1994) (describing the egalitarian and libertarian conceptions of democracy). The issue I raise is not one of liberating or equalizing the participants in political debate but rather one of determining the legitimate participants in the debate. I contend that because corporations are compelled by law to act in the interests of fictional beings who are, in effect, foreigners, corporations are not legitimate proxies for citizens and should not be constitutionally entitled to participate in our political debate.
240. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that the primary function of judicial constitutional decision making should be to protect integrity of democratic political process). Much legal theory since the Legal Realists has concentrated on breaking down the state/society distinction, principally by arguing that the "background" of civil society cannot be understood independently of the legal regime that creates and channels it. In the First Amendment area, this project has only just begun. See, e.g., Owen Fiss, The Irony of Free Speech 2-4 (1996); Cass Sunstein, Democracy and the Problem of Free Speech 16 (1995); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 379-87; Fred Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 949-51 (1993) (taking seriously the metaphor of a free market of ideas and arguing that, as in New Deal economics, regulation rather than abstract rights may be necessary to promote liberty against the threats of legally sanctioned private power). But see Kathleen Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 955 (1995) (reviewing debate and rejecting metaphor of market for speech on autonomy grounds). This Article contends that granting abstract free speech rights to corporations does not promote the liberty of the real individuals involved and that corporations must be understood as part of the state (legal) system that creates them rather than somehow existing "before" it. Doctrinally, however, the Article stands or falls independently of the larger Realist critique of First Amendment jurisprudence: one need not reject the notion of a private sphere to consider whether corporate speech properly is considered part of it. Nor do I see any need for present purposes to enter into the debate regarding the continued usefulness of the Footnote Four categories, see, e.g., Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) (arguing that the Carolene formula of "discrete and insular minorities" must be reappraised). Similarly, I seek to evade the ongoing debate between libertarian and egalitarian concepts of the First Amendment, see, e.g., Fiss, supra, at 15 (describing the conflict between liberty and equality); Fred Schauer, Judicial Review of the Devices of Democracy, 94 Colum. L. Rev. 1326, 1341 (1994) (describing the egalitarian and libertarian conceptions of democracy). The issue I raise is not one of liberating or equalizing the participants in political debate but rather one of determining the legitimate participants in the debate. I contend that because corporations are compelled by law to act in the interests of fictional beings who are, in effect, foreigners, corporations are not legitimate proxies for citizens and should not be constitutionally entitled to participate in our political debate.
241. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that the primary function of judicial constitutional decision making should be to protect integrity of democratic political process). Much legal theory since the Legal Realists has concentrated on breaking down the state/society distinction, principally by arguing that the "background" of civil society cannot be understood independently of the legal regime that creates and channels it. In the First Amendment area, this project has only just begun. See, e.g., Owen Fiss, The Irony of Free Speech 2-4 (1996); Cass Sunstein, Democracy and the Problem of Free Speech 16 (1995); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 379-87; Fred Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 949-51 (1993) (taking seriously the metaphor of a free market of ideas and arguing that, as in New Deal economics, regulation rather than abstract rights may be necessary to promote liberty against the threats of legally sanctioned private power). But see Kathleen Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 955 (1995) (reviewing debate and rejecting metaphor of market for speech on autonomy grounds). This Article contends that granting abstract free speech rights to corporations does not promote the liberty of the real individuals involved and that corporations must be understood as part of the state (legal) system that creates them rather than somehow existing "before" it. Doctrinally, however, the Article stands or falls independently of the larger Realist critique of First Amendment jurisprudence: one need not reject the notion of a private sphere to consider whether corporate speech properly is considered part of it. Nor do I see any need for present purposes to enter into the debate regarding the continued usefulness of the Footnote Four categories, see, e.g., Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) (arguing that the Carolene formula of "discrete and insular minorities" must be reappraised). Similarly, I seek to evade the ongoing debate between libertarian and egalitarian concepts of the First Amendment, see, e.g., Fiss, supra, at 15 (describing the conflict between liberty and equality); Fred Schauer, Judicial Review of the Devices of Democracy, 94 Colum. L. Rev. 1326, 1341 (1994) (describing the egalitarian and libertarian conceptions of democracy). The issue I raise is not one of liberating or equalizing the participants in political debate but rather one of determining the legitimate participants in the debate. I contend that because corporations are compelled by law to act in the interests of fictional beings who are, in effect, foreigners, corporations are not legitimate proxies for citizens and should not be constitutionally entitled to participate in our political debate.
242. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that the primary function of judicial constitutional decision making should be to protect integrity of democratic political process). Much legal theory since the Legal Realists has concentrated on breaking down the state/society distinction, principally by arguing that the "background" of civil society cannot be understood independently of the legal regime that creates and channels it. In the First Amendment area, this project has only just begun. See, e.g., Owen Fiss, The Irony of Free Speech 2-4 (1996); Cass Sunstein, Democracy and the Problem of Free Speech 16 (1995); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 379-87; Fred Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 949-51 (1993) (taking seriously the metaphor of a free market of ideas and arguing that, as in New Deal economics, regulation rather than abstract rights may be necessary to promote liberty against the threats of legally sanctioned private power). But see Kathleen Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 955 (1995) (reviewing debate and rejecting metaphor of market for speech on autonomy grounds). This Article contends that granting abstract free speech rights to corporations does not promote the liberty of the real individuals involved and that corporations must be understood as part of the state (legal) system that creates them rather than somehow existing "before" it. Doctrinally, however, the Article stands or falls independently of the larger Realist critique of First Amendment jurisprudence: one need not reject the notion of a private sphere to consider whether corporate speech properly is considered part of it. Nor do I see any need for present purposes to enter into the debate regarding the continued usefulness of the Footnote Four categories, see, e.g., Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) (arguing that the Carolene formula of "discrete and insular minorities" must be reappraised). Similarly, I seek to evade the ongoing debate between libertarian and egalitarian concepts of the First Amendment, see, e.g., Fiss, supra, at 15 (describing the conflict between liberty and equality); Fred Schauer, Judicial Review of the Devices of Democracy, 94 Colum. L. Rev. 1326, 1341 (1994) (describing the egalitarian and libertarian conceptions of democracy). The issue I raise is not one of liberating or equalizing the participants in political debate but rather one of determining the legitimate participants in the debate. I contend that because corporations are compelled by law to act in the interests of fictional beings who are, in effect, foreigners, corporations are not legitimate proxies for citizens and should not be constitutionally entitled to participate in our political debate.
243. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that the primary function of judicial constitutional decision making should be to protect integrity of democratic political process). Much legal theory since the Legal Realists has concentrated on breaking down the state/society distinction, principally by arguing that the "background" of civil society cannot be understood independently of the legal regime that creates and channels it. In the First Amendment area, this project has only just begun. See, e.g., Owen Fiss, The Irony of Free Speech 2-4 (1996); Cass Sunstein, Democracy and the Problem of Free Speech 16 (1995); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 379-87; Fred Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 949-51 (1993) (taking seriously the metaphor of a free market of ideas and arguing that, as in New Deal economics, regulation rather than abstract rights may be necessary to promote liberty against the threats of legally sanctioned private power). But see Kathleen Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 955 (1995) (reviewing debate and rejecting metaphor of market for speech on autonomy grounds). This Article contends that granting abstract free speech rights to corporations does not promote the liberty of the real individuals involved and that corporations must be understood as part of the state (legal) system that creates them rather than somehow existing "before" it. Doctrinally, however, the Article stands or falls independently of the larger Realist critique of First Amendment jurisprudence: one need not reject the notion of a private sphere to consider whether corporate speech properly is considered part of it. Nor do I see any need for present purposes to enter into the debate regarding the continued usefulness of the Footnote Four categories, see, e.g., Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) (arguing that the Carolene formula of "discrete and insular minorities" must be reappraised). Similarly, I seek to evade the ongoing debate between libertarian and egalitarian concepts of the First Amendment, see, e.g., Fiss, supra, at 15 (describing the conflict between liberty and equality); Fred Schauer, Judicial Review of the Devices of Democracy, 94 Colum. L. Rev. 1326, 1341 (1994) (describing the egalitarian and libertarian conceptions of democracy). The issue I raise is not one of liberating or equalizing the participants in political debate but rather one of determining the legitimate participants in the debate. I contend that because corporations are compelled by law to act in the interests of fictional beings who are, in effect, foreigners, corporations are not legitimate proxies for citizens and should not be constitutionally entitled to participate in our political debate.
244. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that the primary function of judicial constitutional decision making should be to protect integrity of democratic political process). Much legal theory since the Legal Realists has concentrated on breaking down the state/society distinction, principally by arguing that the "background" of civil society cannot be understood independently of the legal regime that creates and channels it. In the First Amendment area, this project has only just begun. See, e.g., Owen Fiss, The Irony of Free Speech 2-4 (1996); Cass Sunstein, Democracy and the Problem of Free Speech 16 (1995); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 379-87; Fred Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 949-51 (1993) (taking seriously the metaphor of a free market of ideas and arguing that, as in New Deal economics, regulation rather than abstract rights may be necessary to promote liberty against the threats of legally sanctioned private power). But see Kathleen Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 955 (1995) (reviewing debate and rejecting metaphor of market for speech on autonomy grounds). This Article contends that granting abstract free speech rights to corporations does not promote the liberty of the real individuals involved and that corporations must be understood as part of the state (legal) system that creates them rather than somehow existing "before" it. Doctrinally, however, the Article stands or falls independently of the larger Realist critique of First Amendment jurisprudence: one need not reject the notion of a private sphere to consider whether corporate speech properly is considered part of it. Nor do I see any need for present purposes to enter into the debate regarding the continued usefulness of the Footnote Four categories, see, e.g., Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) (arguing that the Carolene formula of "discrete and insular minorities" must be reappraised). Similarly, I seek to evade the ongoing debate between libertarian and egalitarian concepts of the First Amendment, see, e.g., Fiss, supra, at 15 (describing the conflict between liberty and equality); Fred Schauer, Judicial Review of the Devices of Democracy, 94 Colum. L. Rev. 1326, 1341 (1994) (describing the egalitarian and libertarian conceptions of democracy). The issue I raise is not one of liberating or equalizing the participants in political debate but rather one of determining the legitimate participants in the debate. I contend that because corporations are compelled by law to act in the interests of fictional beings who are, in effect, foreigners, corporations are not legitimate proxies for citizens and should not be constitutionally entitled to participate in our political debate.
245. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that the primary function of judicial constitutional decision making should be to protect integrity of democratic political process). Much legal theory since the Legal Realists has concentrated on breaking down the state/society distinction, principally by arguing that the "background" of civil society cannot be understood independently of the legal regime that creates and channels it. In the First Amendment area, this project has only just begun. See, e.g., Owen Fiss, The Irony of Free Speech 2-4 (1996); Cass Sunstein, Democracy and the Problem of Free Speech 16 (1995); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 379-87; Fred Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 949-51 (1993) (taking seriously the metaphor of a free market of ideas and arguing that, as in New Deal economics, regulation rather than abstract rights may be necessary to promote liberty against the threats of legally sanctioned private power). But see Kathleen Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 955 (1995) (reviewing debate and rejecting metaphor of market for speech on autonomy grounds). This Article contends that granting abstract free speech rights to corporations does not promote the liberty of the real individuals involved and that corporations must be understood as part of the state (legal) system that creates them rather than somehow existing "before" it. Doctrinally, however, the Article stands or falls independently of the larger Realist critique of First Amendment jurisprudence: one need not reject the notion of a private sphere to consider whether corporate speech properly is considered part of it. Nor do I see any need for present purposes to enter into the debate regarding the continued usefulness of the Footnote Four categories, see, e.g., Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) (arguing that the Carolene formula of "discrete and insular minorities" must be reappraised). Similarly, I seek to evade the ongoing debate between libertarian and egalitarian concepts of the First Amendment, see, e.g., Fiss, supra, at 15 (describing the conflict between liberty and equality); Fred Schauer, Judicial Review of the Devices of Democracy, 94 Colum. L. Rev. 1326, 1341 (1994) (describing the egalitarian and libertarian conceptions of democracy). The issue I raise is not one of liberating or equalizing the participants in political debate but rather one of determining the legitimate participants in the debate. I contend that because corporations are compelled by law to act in the interests of fictional beings who are, in effect, foreigners, corporations are not legitimate proxies for citizens and should not be constitutionally entitled to participate in our political debate.
246. It may be worth noting, in this connection, that corporate speech not in the pursuit of profit is anomalous as a matter of corporate law and market theory. When corporations act as semi-eleemosynary institutions, their managers are (by definition) imposing avoidable costs on the firm and will be punished by any reasonably competitive product or capital market. In a competitive market, firms that waste money on activities that are not designed to increase profit will have higher costs than other firms and, accordingly, will be driven out of business. Cf. Dodge v. Ford, 170 N.W. 668, 684 (Mich. 1919) (condemning such activity as a legal matter as well).
247. See supra note 68.
248. See supra note 121.
249. See Greenwood, Akhnai, supra note 30, at 339-42 (discussing majoritarian difficulty). Jim Crow or the Nuremberg Laws would have remained just as evil even if they had been adopted in free and democratic elections in which their victims had been allowed to vote; no one, so far as I know, has tried to distinguish the American version of apartheid from the South African version on the ground that the former, but not the latter, involved a majority oppressing a minority. Majority oppression, in short, is still oppression.
250. This explanation also serves to distinguish the foreign speaker cases. While Mandel was not a fellow citizen, Kliendienst v. Mandel, 408 U.S. 753 (1972), he is nonetheless a fellow human being and in some sense entitled to be at least to some degree considered a member of our larger community with whom we should remain in dialogue. More importantly, Mandel can be understood to be speaking as the agent of the citizens who invited him to speak; as we have seen, the corporation speaks as an agent of legal fictions, not human citizens.
251. See Walzer, supra note 4, at 96-103 (describing what money cannot, or should not be able to, buy).
252. Because share holdings are a very small part of most citizens' personal wealth, even on purely economic issues, real investors will often find themselves better off with lower stock prices. See discussion supra pp. 1035-37.
253. More complicated views recognize that the share may be a part of a diversified portfolio. See supra note 101 and accompanying text (discussing portfolio investors). Whether the shareholder is thought of as undiversified or as a portfolio of shares affects its imputed interests on a number of important issues, as discussed below. However, both the diversified and the undiversified shareholder share the characteristics stated in the text, and, in particular, neither has any interest in values that are reflected only in non-publicly traded citizens, such as child rearing or civic virtue.
254. There is no reason to believe that lobbying is paid for by shareholders. At equilibrium in fully competitive markets, lobbying (like other forms of advertising and regulatory compliance) is a cost of production borne by consumers. In less perfect markets, the cost may be borne by consumers, equity or bond holders, suppliers, or employees, depending on the relative competitiveness of product, capital, supply, and labor markets.
255. Matthew 19:24.
256. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990) (restricting corporate campaign contributions in part on theory that corporate wealth results from state protection).
257. Many commentators have assumed that if corporations have a distinctive voice, as I am arguing they do, that is a reason to protect their speech. See Bellotti, 435 U.S. at 782 n.18 (stating that voters might be "interested in hearing [corporations'] views," apparently assuming that a corporation has a view separate from the protected views of its human constituents); cf. id. at 770 n.4 (imputing "belie[f]" to anthropomorphized corporation); id. at 769 (imputing "want[s]" and "views" to anthropomorphized corporation). See generally Dan-Cohen, A Legal Theory (arguing for distinctiveness of corporation as an organizational entity different from the individuals who make it up, due in part to role requirements, but conceding (at p. 110) that corporation has no right to be heard); Dan-Cohen, Freedoms of Collective Speech, supra note 115; Martin Redish, Self-Realization, Democracy and Freedom of Expression: A Reply to Professor Baker, 130 U. Pa. L. Rev. 678 (1982) (emphasizing importance of listeners' rights and assuming that corporations add a distinctive voice to the mix of information); Shelledy, supra note 19, at 568-69. But this can be true only if corporations might have an original position that no human could have thought of - a manifest impossibility - or if they are a legitimate interest group entitled to representation separate and apart from the human beings who compose them (each of whom, of course, retains full First Amendment rights to promote his or her own views using his or her own assets).
258. Many commentators have assumed that if corporations have a distinctive voice, as I am arguing they do, that is a reason to protect their speech. See Bellotti, 435 U.S. at 782 n.18 (stating that voters might be "interested in hearing [corporations'] views," apparently assuming that a corporation has a view separate from the protected views of its human constituents); cf. id. at 770 n.4 (imputing "belie[f]" to anthropomorphized corporation); id. at 769 (imputing "want[s]" and "views" to anthropomorphized corporation). See generally Dan-Cohen, A Legal Theory (arguing for distinctiveness of corporation as an organizational entity different from the individuals who make it up, due in part to role requirements, but conceding (at p. 110) that corporation has no right to be heard); Dan-Cohen, Freedoms of Collective Speech, supra note 115; Martin Redish, Self-Realization, Democracy and Freedom of Expression: A Reply to Professor Baker, 130 U. Pa. L. Rev. 678 (1982) (emphasizing importance of listeners' rights and assuming that corporations add a distinctive voice to the mix of information); Shelledy, supra note 19, at 568-69. But this can be true only if corporations might have an original position that no human could have thought of - a manifest impossibility - or if they are a legitimate interest group entitled to representation separate and apart from the human beings who compose them (each of whom, of course, retains full First Amendment rights to promote his or her own views using his or her own assets).
259. Many commentators have assumed that if corporations have a distinctive voice, as I am arguing they do, that is a reason to protect their speech. See Bellotti, 435 U.S. at 782 n.18 (stating that voters might be "interested in hearing [corporations'] views," apparently assuming that a corporation has a view separate from the protected views of its human constituents); cf. id. at 770 n.4 (imputing "belie[f]" to anthropomorphized corporation); id. at 769 (imputing "want[s]" and "views" to anthropomorphized corporation). See generally Dan-Cohen, A Legal Theory (arguing for distinctiveness of corporation as an organizational entity different from the individuals who make it up, due in part to role requirements, but conceding (at p. 110) that corporation has no right to be heard); Dan-Cohen, Freedoms of Collective Speech, supra note 115; Martin Redish, Self-Realization, Democracy and Freedom of Expression: A Reply to Professor Baker, 130 U. Pa. L. Rev. 678 (1982) (emphasizing importance of listeners' rights and assuming that corporations add a distinctive voice to the mix of information); Shelledy, supra note 19, at 568-69. But this can be true only if corporations might have an original position that no human could have thought of - a manifest impossibility - or if they are a legitimate interest group entitled to representation separate and apart from the human beings who compose them (each of whom, of course, retains full First Amendment rights to promote his or her own views using his or her own assets).
260. 424 U.S. 1 (1976).
261. Dodge v. Ford Motor Co., 170 N.W. 668, 684 (Mich. 1919) (holding that majority shareholder and board could not run corporation as a semi-eleemosynary institution). For a more careful discussion of the choices open to conscientious corporate managers, see Greenwood, supra note 14. Ford the Foundation requires a different analysis. See infra p. 1027 (discussing speech by private foundations).