I wrote a few posts in the aftermath of Citizens United arguing that the backlash to it had a misplaced focus on whether the court had decided that “corporations are persons” with constitutional rights. I did think that, in practice, there are many constitutional purposes for which it would be necessary to treat them as persons if you wanted to meaningfully safeguard the rights of actual persons—but I also argued that it was just a red herring in this case. I don’t know that anyone was convinced who didn’t already agree, but maybe it’ll help if Lawrence Lessig says the same thing:
There has been a growing fury about the Supreme Court’s decision in the Citizens United case, but much of that fury hangs upon an odd reading of the Court’s opinion. The Court, it is said, has given corporations all the rights of “persons.” It has elevated these artificial beings into entities “endowed by their Creator” (us) “with certain unalienable rights,” including the right to free speech.
No doubt the Court has a long history of recognizing the “person” in “Inc.” But this current wave of criticism is hard to understand, because the Court’s entire Citizens United opinion hung upon the fact that the First Amendment says nothing about who or what is to get the benefit of its protection. It simply bans certain kinds of regulation. As Justice Scalia put it in his concurrence: “The Amendment is written in terms of ‘speech,’ not speakers.” Thus, the government is blocked by the First Amendment from constraining the free speech of any entity, whether that entity is a corporation or a dolphin.
Lessig’s answer is a constitutional amendment permitted limited regulation of speech (or rather, expenditures on speech) by non-citizens. I feel relatively confident that this one is a non-starter, since constitutional amendments are damn hard to pass anyway, and there are chunks of the necessary coalition that I expect would balk at cementing such a distinction in law.