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The Corporate Form and Freedom For the Few

Anthony Kammer

We should be done by now with the idea that a corporation is a single thing. Corporations contain a multitude of conflicting interests and are much more like miniature governments with their own governance structures and election systems than is commonly recognized.  While these structures are far more hierarchical and undemocratic than we require of our public institutions, Americans should not be resigned that this is the best or the only way the private sector can be structured.

The debate over corporate disclosure currently going on at the SEC exposes some important fissures within the modern American corporation. On the one hand, corporate managers and their allies have argued that corporations should be able to engage in political activities without having to disclose how much they spent or who that money went to. But there is a subtle slight-of-hand to this argument. It conflates the overall interests of the corporation with the desires of management and directors. What proponents of this view really mean is that management and directors should be able to make political expenditures without getting any input from shareholders or other constituencies within the corporation.

On the other side of the debate, shareholders and shareholder advocacy groups have been calling for greater disclosure regarding how corporate money is spent in politics. Shareholders have pointed out, rightly, that management’s political activities are not necessarily good for business. The money spent on political activity is money that shareholders might otherwise see reinvested in the company or have paid out in dividends, and it is money they have residual legal claims to. And, importantly, it often expresses political views that shareholders have no interest in supporting.

Shareholders have been introducing and voting on proposals to improve disclosure. But even when these measures pass, they are merely advisory and do not bind managers. It’s simply not the case that corporate political spending reflects the views of all the people who make up a business. Under existing corporate law, these intra-business disputes already tend to be resolved in management’s favor. And right now it is only management and directors whose views are reflected in political activity. It’s also quite noteworthy that employees’ interests aren’t even a part of this picture.

In spite of all that, management continues to push back against shareholders. Likely emboldened by Citizens United, proponents of management dominated corporate speech have begun to claim First Amendment freedoms against their own shareholders. Consider this rather surprising statement from former SEC Commissioner Paul Atkins:

shareholder activists, including unions, state pension funds and ‘socially responsible investors,’ have increasingly turned to shareholder proposals to selectively burden American businesses exercising their First Amendment rights.

Leaving aside the fact that nobody has First Amendment rights against other private actors, this is an extremely bold assertion. This is tantamount to saying that the interests of management should trump all others and that neither private nor public actors should be permitted to interfere.

Frighteningly, recent developments have begun to enshrine this pro-boss, pro-management bias elsewhere in the law as well. This trend can be seen in a number of settings. During the last election cycle, a number of journalists were reporting that employers were asserting a First Amendment right to trample on the voting rights of their employees. In the ongoing fights over the Affordable Care Act, a number of employers have asserted a constitutional right not to pay for employees’ access to birth control and reproductive health services. (And in the religious non-profit setting, the Obama Administration appears prepared to give them the exemption they were seeking.)

Corporations are a “they,” not an “it.” And it’s vitally important that this “they” doesn’t only mean corporate management. More democratic private sector institutions would be an important start. But we need a new constitutional framework for understanding people’s positive rights in the private sector as well. Freedom under the First Amendment doesn’t simply mean, as Paul Atkins might like, protecting bosses from public and private accountability. It means empowering a variety of people, shareholders, workers, communities, and the broader public, to shape the political conditions they live in.