PP1023
Analítico de Periódico
BOWIE, Nikolas
Corporate democracy : how corporations hustified their right to speak in 1970s Boston / Nikolas Bowie
Law and History Review, v.36 n.4 (November 2018), p.943-992
DIREITO CONSTITUCIONAL / EUA, LIBERDADE DE EXPRESSÃO / EUA, EMPRESA / EUA, PARTICIPAÇÃO POLÍTICA / EUA
The first part of this article describes a little-known chapter in what is becoming a well-known story: the rise of corporate political speech in the 1970s. From 1971 to 1976, Ephron Catlin and his fellow executives at the First National Bank of Boston decided to spend the bank’s money to oppose two referenda that would raise their personal income taxes but lower the taxes of most of the bank’s shareholders and employees. To justify their actions, Catlin spoke of the bank using metaphors that obscured the uncomfortable distinction between his views and those of the rest of the corporation’s membership. He argued that the bank was practicing “corporate good citizenship” by announcing its opposition to the tax, and that corporations should have “the same First Amendment rights as individuals.” These arguments were well received by the Supreme Court, particularly Justice Lewis Powell, who before joining the bench had forcefully advocated for business executives to use their corporations’ resources to fight a culture war against leftist academics and journalists. Although the Court was not willing to treat the bank as if it were a single individual, it reached Catlin’s desired result by pointing out that shareholders indirectly elected executives such as Catlin through the procedures of “corporate democracy,” thus tacitly approving whatever political views the executives thought that the bank should promote. The second part of this article discusses what happened when the mayor of Boston tried to take advantage of this ruling. Taxpayers were immediately skeptical of the idea that he spoke on the entire city’s behalf. It was obvious to everyone that a city does not necessarily have a single perspective, and that the individual interests of the mayor might conflict with the corporate interests of Boston’s residents as a whole. Even though the city’s elections for mayor were even more democratic than the bank’s elections for directors, the existence of “corporate democracy” in Boston did not relieve residents’ anxiety. The mayor still had to explain why residents, and voters, should trust that he truly had the city’s interests at heart. The article concludes by arguing that, despite the many obvious differences between a municipal corporation and a financial corporation, the city of Boston’s intervention in the 1978 referendum made it intuitive to a wide audience that all corporations, even banks, are representative institutions. It showed that the legitimacy of corporate speech should not only turn on how similar the corporation is to an individual, but also on whether the person who decides what the corporation stands for has the consent of his or her constituency.