A. The False Freedom of Association Assumption For many years of corporate case law, the Supreme Court has given little reasoning as to why on multiple occasions it has assumed that corporations are associations. Employing the dictionary definition of “association,” it is certainly facile to make this assumption: a corporation is indeed a grouping of natural persons, which is the general definition of an association. Nevertheless, given the influence corporations demonstrate in American society, the Court’s failure to distinguish between types of associations of natural persons is a dangerous neglect of key definitional differences between corporate and unincorporated groups, with a clear consequence being the Citizens United decision. Under closer scrutiny, it becomes evident that corporations are not ordinary associations. Nonmedia, non-MCFL corporations24 have three special characteristics that render them distinct from other types of associations, such as voluntary associations. Corporations thus belong in a special classification of associations, a fact which has in the past led to the constitutionally justified restriction of certain rights generally restricted to natural persons and associations of natural persons. This classification must be applied to corporations in future campaign finance cases in order to preserve integrity in the democratic process. The first special characteristic of corporations pertains to the jurisprudence on freedom of association and corporations’ heavily regulated legal status. Contrary to Citizens United, the presumption of the Court in precedent has been that corporations are indeed not reserved freedom of association. This fact is demonstrated by pondering what past jurisprudence would have formed if corporations were consistently granted freedom of association. Would a corporation have challenged the establishment of the Federal Trade Commission or the Environmental Protection Agency by claiming it abridged the members’ rights to freely associate or 24. FEC v. Massachusetts Citizens for Life, Inc. (MCFL) was decided in 1986, the term “MCFL organization” became synonymous with an organization organized under 26 U.S.C. § 527 which was “for the express purpose of promoting political ideas” and which had “no shareholders or other persons affiliated as to have a claim on its assets or earnings.”
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