Wednesday, February 10, 2016
Citizens United vs. Friedrich
Mark Joseph Stern, writing for Slate about Hillary Clinton's NH concession speech, notes in passing a looming contradiction between the Friedrich vs. California Teachers case and the terrible Citizen's United decision.
Folks tend to remember the bizarre reasoning that corporations are people, money is free speech, and there is no appearance of corruption when a corporation hands an elected official a giant suitcase full of money. But one of the arguments that the Supremes rejected in Citizens United was this one:
This problem arises because of the structure of corporations: the owners of the corporations, the shareholders, do not control how the assets of the corporation are used; the managers do. This separation of ownership and control is known as the agency problem in corporate law. The agency problem presents the potential for the shareholders’ agents, corporate management, to use the shareholders’ property, the assets of the corporation, for management’s own purposes. One argument made in favor of limiting corporate expenditures is that management can use the assets of the corporations to support political causes shareholders do not agree with, thereby violating the shareholders’ rights of association. The potential violation of this right gives the government a compelling interest justifying speech limitations.
In other words, shareholders could find their corporate assets being used to support a political cause they do not support.
The Supremes were unimpressed, and rejected that argument when they decided Citizens United.
Yet it is, of course, the exact argument of the plaintiffs in Friedrichs, who don't want anybody to ever give fees to unions for political purposes.
Well, actually, it's not the same argument. It's a stronger one, since the CU argument involves shareholders' actual property, while Friedrichs involves taking up a separate collection for political purposes. Friedrich's doesn't want the union to be able to ask you to kick in for cab fare to drive me to a rally for a politician you hate; Citizens United says I can take a car we jointly own and drive it through your garden.
There is no reason to expect that this inconsistency will carry the day. But if Friedrichs wins against unions, as seems likely-ish, it will be one more sign that today's court believes that all corporations are people, and some people are more equal than others.