I’m in Crikey today on the challenge to the New South Wales legislation that prohibits campaign donations from anyone other than people on the electoral roll. It raises the same issue as in the famous Citizens United case of 2010 in the United States: do corporations have the same rights to things like free speech as a natural person has?
The twist is that whereas it was the left that railed against Citizens United and the right that defended it, here it’s the left – or at least the union movement – that’s arguing for corporate entities (including, of course, unions) to get the protection of freedom of speech.
As usual, electoral law is all about partisan advantage. The participants might talk the language of high principle, but they will quickly switch sides if they think a particular principle is working against them.
But the general issue isn’t going to go away. Whatever you think about election spending (and my inclination is to less restriction rather than more), we have a problem about treating corporations and the like as if they were separate things with interests and intentions of their own, rather than just collections of individuals. This idea has played havoc with the law of corporate governance.
My attention has now been drawn to a case last month in Pennsylvania, where the county court had to decide whether the precedent of Citizens United obliged it to give corporations the benefit of a right to privacy, in the context of a dispute over documents related to natural gas drilling.
I can’t find a copy of the judgement online (maybe some helpful reader can), but from the report at AlterNet, Judge Debbie O’Dell Seneca ruled that Pennsylvania’s constitution treated corporations as creatures of the state, not independent legal persons. Since the right they were claiming was under state law, she said they could not rely on the Supreme Court’s interpretation of the federal constitution:
If the framers had intended this section to shield corporations, limited-liability corporations, or partnerships, the Court presumes that they could and would have used those words. The plain meaning of “people” is the living, breathing humans in this Commonwealth.
If corporations had the same rights as people, she said, “the chattel would become the co-equal to its owners, the servant on par with its masters, the agent the peer of its principals, and the legal fabrication superior to the law that created and sustains it.”
Unions NSW will be hoping that the High Court isn’t thinking along those lines.