PolicyTorque LLC is an engineering-informed policy analysis publication dedicated to documenting the mechanisms by which concentrated wealth and power have compelled government at every level to serve the interests of concentrated power. It submits this brief to address a question left unresolved in the Court's associational speech jurisprudence:
Whether a publicly traded corporation may claim to exercise the collective political expression of associated people despite lacking any mechanism to obtain, verify, or demonstrate meaningful political consent from the individuals whose labor, investment, and economic participation generate the resources used for such expression.
This brief does not argue that citizens lose constitutional rights by participating in corporations. Nor does it argue that citizens may not associate for political purposes.
Instead, amicus argues that the constitutional justification for corporate political expenditures rests upon assumptions of representation and consent that are absent from the governance structure of modern publicly traded corporations.
The constitutional protection of collective political expression presupposes collective authorization.
When citizens assemble to advocate for public policy, they may legitimately be said to speak collectively. Membership associations, employee-owned organizations, voluntary political groups, and other representative institutions often possess identifiable mechanisms through which members authorize, ratify, or reject political activity.
Modern publicly traded corporations possess no comparable mechanism.
Employees do not vote on political expenditures.
Customers do not vote on political expenditures.
Most shareholders do not direct political expenditure.
Many shareholders are indirect owners through retirement plans, pension funds, and index funds and exercise little or no meaningful control over specific political advocacy.
Consequently, political expenditures undertaken by publicly traded corporations cannot automatically be characterized as the collective speech of the individuals associated with those corporations.
Rather, such expenditures are more accurately understood as managerial speech funded by pooled economic resources.
The Court should therefore require a demonstrable nexus between political expenditure and meaningful authorization before treating corporate expenditure as the collective political speech of associated citizens.
The First Amendment protects the rights of citizens to speak individually and collectively.
The rationale for protecting collective expression is straightforward: citizens do not lose constitutional rights merely because they join together to exercise them.
That rationale presupposes a critical condition: the members of the association have, directly or indirectly, authorized the association to speak on their behalf.
In ordinary agency relationships, a representative must be able to identify the source of authority for representation.
Courts routinely ask:
Who authorized the agent?
Political legitimacy similarly rests upon consent.
Yet publicly traded corporations commonly engage in political activities without any showing that the people whose labor, investment, and participation generated corporate wealth consented to those activities.
Authorization is presumed rather than demonstrated.
Individuals join corporations principally for economic reasons.
Employees exchange labor for compensation.
Customers exchange money for goods and services.
Investors seek financial returns.
None of these relationships inherently constitute political association.
When an individual joins a political party, advocacy organization, or civic association, political expression is central to the organization's purpose.
When an individual accepts employment with an engineering firm, manufacturer, retailer, or financial institution, political expression is generally not the purpose of the relationship.
Economic participation should not be presumed to constitute political consent. The Constitution recognizes no such principle.
To conclude otherwise would permit political authority to arise automatically from economic dependency.
Again, the Constitution recognizes no such principle.
A publicly traded corporation acts through executives and directors.
Political expenditures are generally authorized by a small number of managerial actors.
Employees typically possess no voting authority over such decisions.
Customers possess no voting authority whatsoever.
Even shareholders rarely exercise direct approval over specific political expenditures.
Consequently, the political position ultimately advanced may reflect the views of management while being financed by resources generated through the efforts of millions of individuals.
The Court should not automatically equate managerial preference with collective consent.
To do so confuses corporate governance with political representation.
The two are not identical concepts.
One concerns the operation of an economic enterprise.
The other concerns the exercise of constitutional political rights.
The American constitutional tradition has progressively moved away from systems that condition political power upon property ownership.
Property qualifications for voting were abandoned.
Political participation was progressively extended regardless of wealth.
The governing principle became political equality among citizens.
Yet corporate political expenditures permit accumulated capital to be deployed in the political sphere independently of any demonstration of political authorization by the individuals whose economic activity generated that capital.
A citizen possesses one vote.
A citizen may associate with others.
A citizen may advocate for political outcomes.
But when corporate resources are employed politically without meaningful authorization, influence becomes detached from citizenship and attached instead to control of accumulated capital.
That result sits uneasily beside the constitutional commitment to political equality.
In addition, individuals have limits on what they can donate to individual campaigns. The entities created in the wake of the 2010 decision are allowed to accept unlimited funding from sources that need not identify themselves.
Predictably, it is difficult for the citizen's subject to these entities' advertisement dollars to understand who is supporting such advertisement campaigns, and what their motive might be. Since the entities can not actually vote, then the only purpose their expenditures must serve is to influence the vote of actually eligible voters.
If that wasn't enough of a definitional difference between an entity and a person, the remaining arguments can be sufficiently destroyed on the terms of volume.
Without this ruling, the 501-C(4) organizations formed in the wake would not have existed, and therefore individual limits still applied, not to mention disclosure of individual donors is required.
These so called "Social Welfare" organizations, aside from having a name full of irony, have no such disclosure requirements or individual donor limits. To just assume the money they bundle and funnel through advertising methods is the collective representation of individual speech rights is 2 degrees of transparency away from basic citizenry.
Therefore, by every definition this author can think of supposed in good faith, the constitutional basis behind Citizens United vs FEC must be overturned.
This brief does not contend that every organization should be treated identically.
Certain entities possess structures capable of demonstrating meaningful political consent.
Examples may include:
• Worker cooperatives.
• Employee-owned corporations.
• Member-governed associations.
• Labor organizations.
• Political advocacy groups.
Such entities may possess voting mechanisms through which political expenditures can be authorized by those claimed to be represented.
The existence of such structures strengthens the claim that expenditures constitute genuine collective speech.
The same cannot be assumed of publicly traded corporations lacking comparable mechanisms of authorization.
The distinction is not between favored and disfavored speakers.
It is between demonstrated representation and presumed representation.
The Court's associational speech doctrine rests upon the proposition that collective entities may exercise the constitutional rights of the persons who compose them.
That proposition requires a meaningful relationship between the speaker and the individuals purportedly represented.
Publicly traded corporations possess no reliable mechanism for obtaining or demonstrating political consent from the employees, customers, investors, and other participants whose labor, capital, and economic activity generate the resources used for political expenditures.
Absent such consent, those expenditures are more accurately characterized as managerial speech financed by pooled economic resources than as the collective speech of associated citizens.
The Court should recognize that collective political expression requires collective authorization and should decline to presume representation where representation has not been demonstrated.
Respectfully submitted,
Michael Russo on Behalf of Plaintiff and PolicyTorque, LLC