The Massachusetts Angle on Freedom of Speech for Corporations

We in Shays 2 propose that we should be arguing these issues by re-opening the 1978 Supreme Court case called First National Bank v. Bellotti and not only looking at the narrower issues posed by the Citizens United v.FEC case. (We will need a coalition of lawyers and activists on this one). Many would argue that corporate power today comes directly from that regrettable Supreme Court decision on a good MA law.

In 1978 the U.S. Supreme Court struck down a Massachusetts law that prohibited business corporations from making contributions and expenditures in state referenda "for the purpose of influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation."

Our own dedicated (3-term) Massachusetts Attorney General Francis X. Belotti fought to keep that state law in place against the First National Bank of Boston's challenge, to keep elections cleaner in our state. He — and we — lost at the U.S. Supreme Court.

The bank argued that the Massachusetts law was an unconstitutional interference with its corporate freedom of speech.

In its ruling in the case of First National Bank of Boston v. Bellotti, the Court — in a 5 to 4 majority — seemed to give Constitutional protection to corporate free speech. Business entities today claim a constitutional right to use their economic power to participate in political campaigns and influence the outcome of public votes free from public regulation.

Corporate lobbying, campaign contributions by business leaders, "soft money campaign support" by businesses, the "revolving door" of businessmen and public servants: these are only a few of the many ways that corporations interact with politicians and political institutions in an effort to influence public action to their advantage.

The defeat of the Bellotti case opened the floodgates for corporations to spend money to influence the outcome of a public referendum regardless of whether the issue relates to the corporation's business interests.

The Court established that corporations have some free speech rights under the First Amendment to the United States Constitution and that corporations had a First Amendment right to make contributions in order to attempt to influence political processes.

Justice Lewis Powell, in his opinion in First National Bank of Boston v. Bellotti, ruled that a Massachusetts criminal statute prohibiting the expenditure of corporate funds "for the purpose of ... influencing or affecting" voters' opinions infringed on corporations' "protected speech in a manner unjustified by a compelling state interest."

However, Justice Rehnquist, in his eloquent dissent, made the points that we citizens should be making now in re-opening Bellotti's struggle for democracy and in this forum on Citizens United v. FEC. He argued that the Court had already decided that a corporation was a "person" in granting corporate rights.

He said, "The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court."

"However, the General Court of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible," Justice Rehnquist continued. "The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court."

"Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law," Rehnquist continued, "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence."

The public has come to accept this strong connection between business and politics. This is something that we in the national democracy movement must work to change before it is too late! We must re-open the Belloti case and re-open that debate.

A few years ago in conversation with our colleague John Bonifaz the importance of re-opening the Bellotti came up as a possibility. With the impending decision of the Court in the Citizens United case threating to codify "corporate personhood," the time to re-open the Bellotti case and argue the core issues seems NOW.

-- Carolyn Toll Oppenheim & Ward Morehouse