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Legislative Memo

Ken Pokalsky
Vice President of Government Affairs
T 518.465.7511
www.bcnys.org

BILL:

K.1190 (Brennan) / J.4154 (Squadron)

Support

SUBJECT:

Legislative Resolution Memorializing Congress to Propose and Amendment to the Constitution that Corporations are not Entitled to the Entirety of Protections or Rights of Natural Persons

 

DATE:

June 5, 2012

 

The Business Council of New York State opposes this legislative resolution that urges Congress to limit the rights of corporations under the United States Constitution stemming from the Supreme Court of the United States decision in Citizens United v. FEC.

The Supreme Court of the United States ruled that portions of the Bipartisan Campaign Reform Act (2002) violated first amendment rights by restricting corporations and unions communications through the use of independent expenditures. Though the proposed resolution expressly implies that the Supreme Court’s ruling “threatens to dilute an individual’s power as a voting citizen and compromise the democratic process....” the ruling does quite the opposite.

The majority opinion of the Supreme Court in Citizens United was not to give more or unlimited power to corporations, or unions for that matter, but to opine on how first amendment rights factored in and if they were being upheld in accordance to the United States Constitution.  They found that first amendment rights were being dictated by the legislation, which is contrary to the essence and definition of Free Speech.

The consenting Justices did not overturn BCRA restrictions on direct campaign contributions because they found that direct contributions from corporations and unions can be regulated because of possible quid pro quo. They did not find the same issue regarding independent expenditures. Instead, the decision addressed the degree to which Congress can  limit the speech of any given group of citizens.

In the Citizens United decision, the majority opinion cited past case law as their basis for why corporations and unions have rights under the First Amendment, specifically regarding political speech. In NAACP v. Button (1969) the Supreme Court found that the NAACP, a NYS registered non-profit corporate entity, did have rights equal to individuals because they are made up of and represent individuals.

Justice Kennedy wrote in his majority opinion in Citizens United v. FEC, “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

The Business Council believes that, given the broad impact that government has on business operations, business needs to be engaged in political and legislative issues. For these reasons, we oppose the type of restrictions on corporate engagement in public issues that is proposed in this resolution.