Corporate Speech in Citizens United vs. Federal Election Commission

In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the 5-4 majority, held that “[b]y suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which person or entities are hostile to their interests” (Citizens United vs. Federal Election Commission 558 U.S. 38-9 (2010); emphasis added). Much of the language of the opinion, and some of its reasoning, as this passage illustrates, presupposes that corporations are agents capable of speech, and that it is (at least in part) in the light of this that limitations on political advocacy by corporations are prohibited by the Constitution. While there are other strands in the argument, they are interwoven with the conception of the corporation as agent and speaker, with its voice and its viewpoints. The dissenters on the court objected on precisely this point (among others). Justice Stevens wrote sarcastically in his dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, that “[u]nder the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech” (558 U.S. 33 (2010)). Justice Sotomayor suggested in oral argument that the Court’s century-old practice of treating corporations as persons rests on a conceptual mistake. My concern in this essay is not with the question whether the restrictions violate the Constitution. There are many issues that bear on this which will be outside the scope of my discussion. My concern is with the proper conceptual framework for understanding the agency of corporations and corporate speech, and the role that conceptions of these play in the background of the majority’s reasoning. The issue is legal, but it also has philosophical, conceptual and semantic aspects. It will be the latter aspects, and their potential to shed light on legal reasoning, that are my main focus. An adequate framework requires saying what properly speaking the corporation is, how agency is expressed through the corporation, whose agency it is, centrally whether the corporation is an agent or person in its own right, and in what sense it can be said to be capable of speech. I draw on recent work in collective action theory, particularly with respect to the semantics of collective action sentences (Ludwig 2007) and the analysis of the proxy agency in collective action (Ludwig 2014), to show (i) that corporations are neither genuine agents nor (therefore) capable of engaging in genuine speech, (ii) that consequently the First Amendment does not apply to corporations per se, and (iii) that a better understanding of the mechanisms of corporate agency casts doubt on more indirect arguments for extending the First Amendment to “corporate speech” as well

A Logic for Reasoning about Group Norms

We present a number of modal logics to reason about group norms. As a preliminary step, we discuss the ontological status of the group to which the norms are applied, by adapting the classification made by Christian List of collective attitudes into aggregated, common, and corporate attitudes. Accordingly, we shall introduce modality to capture aggregated, common, and corporate group norms. We investigate then the principles for reasoning about those types of modalities. Finally, we discuss the relationship between group norms and types of collective responsibility

Why Business Firms Have Moral Obligations to Mitigate Climate Change

Without doubt, the global challenges we are currently facing—above all world poverty and climate change—require collective solutions: states, national and international organizations, firms and business corporations as well as individuals must work together in order to remedy these problems. In this chapter, I discuss climate change mitigation as a collective action problem from the perspective of moral philosophy. In particular, I address and refute three arguments suggesting that business firms and corporations have no moral duty to reduce greenhouse gas emissions: (i) that business corporations are not appropriate addressees of moral demands because they are not moral agents, and (ii) that to the extent that they are moral agents their primary moral obligation is to their owners or shareholders, and (iii) the appeal to the difference principle: that individual business corporations cannot really make a significant difference to successful climate change mitigation

Global Justice and the Role of the State: A Critical Survey

Reference to the state is ubiquitous in debates about global justice. Some authors see the state as central to the justification of principles of justice, and thereby reject their extension to the international realm. Others emphasize its role in the implementation of those principles. This chapter scrutinizes the variety of ways in which the state figures in the global-justice debate. Our discussion suggests that, although the state should have a prominent role in theorizing about global justice, contrary to what is commonly thought, acknowledging this role does not lead to anti-cosmopolitan conclusions, but to the defense of an “intermediate” position about global justice. From a justificatory perspective, we argue, the state remains a key locus for the application of egalitarian principles of justice, but is not the only one. From the perspective of implementation, we suggest that state institutions are increasingly fragile in a heavily interdependent world, and need to be supplemented—though not supplanted—with supranational authorities

Behavioral Approaches to Corporate Law

This chapter reviews the challenges associated with developing a plausible theory of why psychological heuristics and biases might persist in high-stakes business settings. Specific attention is given to issues of loyalty on corporate boards, behavioral finance, and corporate cultures

Asset management and governance: an analysis of fleet management process issues in an asset-intensive organization

Efficient asset management is a key performance driver for asset-intensive organizations. Achieving high utilization and return on investment on physical assets are central corporate objectives for public and private organisations alike. Current approaches on asset management include the engineering and governance perspectives. Both perspectives offer valuable but incomplete insights on the management of asset performance: experience demonstrates that an exclusive focus on one or the other may lead to sub-optimal asset and organizational performance. In this paper, we investigate how an integrated approach to asset management can be constructed in the context of vehicle fleets. Beginning with an analysis of how the asset management process is operated through the asset lifecycle, we identify key engineering and organizational factors influencing asset performance. The relationships between factors are analyzed to provide an integrated fleet asset management approach

Collective Intentionality

In this chapter, we focus on collective action and intention, and their relation to conventions, status functions, norms, institutions, and shared attitudes more generally. Collective action and shared intention play a foundational role in our understanding of the social. The three central questions in the study of collective intentionality are: (1) What is the ontology of collective intentionality? In particular, are groups per se intentional agents, as opposed to just their individual members? (2) What is the psychology of collective intentionality? Do groups per se have psychological states, in particular propositional attitudes? What is the psychology of the individuals who participate in collective intentional behavior? What is special about their participatory intentions, their we-intentions, as they are called (Tuomela and Miller 1988), as opposed to their I-intentions? (3) How is collective intentionality implicated in the construction of social reality? In particular, how does the content of we-intentions and the intentional activity of individual agents create social institutions, practices and structures? We first discuss collective action and shared intention in informal groups. Next we discuss mechanisms for constructing institutional structures out of the conceptual and psychological resources made available by our understanding of informal joint intentional action. Then we extend the discussion of collective action and intention to institutional groups, such as the Supreme Court, and explain how concepts of such organizations are constructed out of the concepts of a rule, convention, and status function. Finally we discuss collective attitudes beyond intention

Logics for modelling collective attitudes

We introduce a number of logics to reason about collective propositional attitudes that are defined by means of the majority rule. It is well known that majoritarian aggregation is subject to irrationality, as the results in social choice theory and judgment aggregation show. The proposed logics for modelling collective attitudes are based on a substructural propositional logic that allows for circumventing inconsistent outcomes. Individual and collective propositional attitudes, such as beliefs, desires, obligations, are then modelled by means of minimal modalities to ensure a number of basic principles. In this way, a viable consistent modelling of collective attitudes is obtained