The Corporation in Election Law
16 Pages Posted: 23 Nov 2004
Election law has not settled on a single, coherent conception of the corporation - what it is, what values it serves, and what role it should play in politics. As a result, election laws regulating corporate political activity have been based on a variety of divergent and often inconsistent views of the corporation - some restricting corporate power, others liberating it. Due to the tensions and inconsistencies between the various views of the corporation, none of the laws' goals are fully achieved. The purpose of this Article is to identify the various ways in which election law has conceptualized the corporation and highlight some of the dilemmas engendered by this diversity.
There are five basic ways that election law has viewed the corporation. The first and arguably most influential view of the corporation is the political equality view. According to the political equality view, a corporation is a corrupting force in politics that uses its wealth to gain unfair advantages over ordinary individuals. Election law also manifests two views of the corporation that revolve around the corporation's status as an entity. Under the artificial entity view, the corporation is understood to be a creature of the state, with only those rights granted by the state. In contrast, the natural entity view posits that the corporation is akin to a natural individual with inherent rights, such as freedom of speech, independent of the state. Election law's final two views of the corporation understand it primarily as an association of individuals. When viewed as a perilous association, the corporation warrants election laws that are designed to protect shareholders and employees who do not wish to support corporate politics. When viewed as a salutary association, however, the corporation warrants election laws that are structured to advance the values gained by association through the corporate form.
Because these views are often contradictory and incompatible, the body of corporate electoral law is at best problematic and unsatisfactory, with laws designed to achieve one goal undermined by others seeking different objectives. At worst, corporate election law is internally inconsistent, ineffective, and, in some cases, constitutionally dubious.
Keywords: Campaign finance, corporations, corporate political speech, first amendment, freedom of speech, election law
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