Should Corporations Have Constitutional Rights?

“The New York Times Company is a corporation. The NAACP is a nonprofit corporation. The Sierra Club, the NRA, the AFL-CIO are all incorporated entities. A constitutional regime that denies corporations First Amendment protection empowers government to silence these organizations. Citizens United was not just about corporate money; it was about whether the government could ban a film critical of Hillary Clinton. The answer — no — is correct.”

“Constitutional protections for corporations run deeper than Citizens United. The Fourth Amendment protection against warrantless search of corporate premises protects trade secrets and employee privacy. The Fifth Amendment protection against self-incrimination protects corporate records. Stripping these protections would give the government sweeping investigative power over businesses — a tool with obvious potential for abuse against political opponents.”

“Citizens United unleashed unlimited corporate political spending: super PACs spent $2.9 billion in the 2022 midterms, with a significant portion from undisclosed corporate sources. The evidence that this spending shapes policy — not just elections — is strong. Corporate donors to both parties have achieved favorable regulatory treatment, tax provisions, and trade rules. Constitutional protection for this spending is not protecting speech; it is protecting the power to buy outcomes.”

“The original constitutional text nowhere mentions corporations. The doctrine of corporate constitutional personhood derives from a 19th-century judicial innovation — a headnote added by a court reporter to an 1886 Supreme Court case that did not actually decide the question. Congress has the power, and the constitutional basis, to limit corporate electoral spending and corporate constitutional protections through statute, as most democratic countries have already done.”