Published online by Cambridge University Press: 28 August 2018
In the early 1970s, the executives of the First National Bank of Boston spent hundreds of thousands of the bank's dollars on ads opposing statewide efforts to raise their personal income taxes. When frustrated Massachusetts legislators banned this sort of corporate spending, the executives sued, arguing that “corporations have the same First Amendment rights as individuals.” In First National Bank of Boston v. Bellotti, the Supreme Court held for the first time that the First Amendment protects all political speech, even ads paid for by a corporation. Surprisingly, the first corporation to take advantage of this decision was not the bank, but the city of Boston--a municipal corporation that spent nearly a million dollars on a new referendum in the fall of 1978.
This article discusses the history of the 1978 referendum, one pitting municipal corporations against business corporations. It argues that the referendum and the discourse surrounding it made it intuitive for Bostonians that all corporations, banks and cities, are representative institutions. Corporations can “speak” only by spending money, and the leaders of Boston and the bank justified spending other people's money by pointing to the internal elections that put them in office. But voters were skeptical of the argument that “corporate democracy” alone could guarantee that elected executives spoke with the consent of the people they purported to represent. The article offers a novel contribution to the historiography of modern business and politics: a legal history of how corporations--municipal and financial--became politicized in the wake of evolving First Amendment free-speech doctrine.
He thanks Emma Rothschild, Jim Kloppenberg, Mort Horwitz, Martha Minow, Richard Fallon, Ken Mack, Laurence Tribe, the participants in the Legal History Workshop at Harvard Law School, the participants in the Graduate Student Workshop at the Center for History and Economics, and the anonymous reviewers of Law and History Review for their invaluable insights, advice, and guidance.
1. Memorandum from Raymond G. Torto to Kevin H. White, Mayor (April 12, 1978) (box 70, folder 1, Mayor Kevin H. White Records, City of Boston Archives and Records Management Division, Boston, MA. [hereafter White Records]).
2. See First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
3. See Act of June 1, 1973, ch. 348, 1973 Mass. Acts 247; Robert Turner, “Fall's Referenda Could Change Everything from Trash to Taxes,” Boston Globe, August 22, 1976, A1; and Statement of Agreed Facts ¶¶ 24, 59, First National Bank of Boston v. Attorney General (First Nat'l II), 359 N.E.2d 1262 (Mass. 1976) (No. 76-653).
4. David Rogers and Ray Richard, “We'd Spend Public Funds on Issues—White,” Boston Globe, April 28, 1978, 1, 8.
5. Ibid., 8.
6. Compare, for example, Act of February 7, 1784, ch. 2, 1784 Mass. Acts 54 (chartering the predecessor to the First National Bank as a “corporation and body politic”), with Act of February 23, 1822, ch. 110, 1822 Mass. Acts 734, 734–735 (chartering the City of Boston as a “body politic” with all the rights of “a municipal corporation”); see also, for example, Act of June 3, 1948, ch. 452 §2, 1948 Mass. Acts 403, 403 (“The inhabitants of the city shall continue to be a municipal corporation”).
7. Memorandum from Antonio Mariano, First Vice President of the Massachusetts Mayors Association, to Kevin H. White, Mayor (June 28, 1978), reprinted in Record Appendix at 42–43, Anderson v. City of Boston, 380 N.E.2d 628 (Mass. 1978) (No. 78-253).
8. David Rogers, “Spending Will Soon Top $1m in Tax Classification Campaign,” Boston Globe, October 28, 1978, 6.
9. David Rogers, “White Seeks a Strategy for Tax Campaign Money,” Boston Globe, October 24, 1978, 10.
10. See, for example, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); FCC v. AT&T, Inc., 131 S. Ct. 1177 (2011); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010); Garrett, Brandon L., “The Constitutional Standing of Corporations,” University of Pennsylvania Law Review 163 (2014): 95, 115Google Scholar; Bhagwat, Ashutosh, “Associational Speech,” Yale Law Journal 120 (2011): 978, 1024Google Scholar; Hasen, Richard L., “Citizens United and the Illusion of Coherence,” Michigan Law Review 109 (2011): 581, 619Google Scholar; and Issacharoff, Samuel, “On Political Corruption,” Harvard Law Review 124 (2010): 118, 130Google Scholar.
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23. See, for example, Editorial, “Spending and Speaking,” Boston Globe, November 8, 1978, 22.
24. See, for example, Alan Eisner, “White to Spend $1M Promoting Tax Referendum,” Boston Herald American, May 26, 1978 (box 22, folder 39, White Records).
25. Editorial, “The Costs of Free Speech,” Boston Globe, October 24, 1978, 18.
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29. Citizens United v. the Federal Election Commission 558 U.S. 310, 361–62 (2010) (quoting First National Bank of Boston v. Bellotti, 435 U.S. 765, 794 [1978]).
30. See, for example, Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015); and Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009).
31. See, for example, Page v. Lexington County School District One, 531 F.3d 275 (4th Cir. 2008); and Kidwell v. City of Union, 462 F.3d 620 (6th Cir. 2006).
32. First National Bank Corporation, 1971 Annual Report (1972), 2 (hereafter 1971 Annual Report); Statement of Agreed Facts ¶ 45, First National Bank of Boston v. Attorney General (First Nat'l II), 359 N.E.2d 1262 (Mass. 1976) (No. 76-653). The bank has since changed its name to Bank of Boston, BankBoston, and FleetBoston Financial, and it is now a subsidiary of Bank of America.
33. Carol Liston, “The Vault: Boston's Elite Committee of 14 Keeps a Canny Eye on the City,” Boston Globe, September 3, 1967, A4. For more on the Vault, see O'Connor, Thomas H., The Hub (Boston: Northeastern University Press, 2001), 220–23Google Scholar; O'Connor, Thomas H., The Boston Irish: A Political History (Boston: Northeastern University Press, 1985), 231–43Google Scholar; Lupo, Alan, Liberty's Chosen Home: The Politics of Violence in Boston (Boston: Little, Brown, 1977), 89Google Scholar; and Robert Healy, “Collins Confers with the ‘Vault,’” Boston Globe, November 23, 1966, 9.
34. Robert Lenzner, “Prophets of Doom Wrong: Still Real Problems but Time Ripe for Economic Action,” Boston Globe, March 19, 1973, 30, 31.
35. Liston, “The Vault,” A4; and John Value, “Vision Comes Easy to ‘Yankee Irishman,’” Boton. Globe, March 26, 1964, 20.
36. Robert Lenzner, “Portrait of a Boston Banker,” Boston Globe, September 2, 1973, C6.
37. Ibid.
38. O'Connor, The Hub, 221; and Lenzner, “Prophets of Doom Wrong,” 31. For example, after President John F. Kennedy announced his plan to put a man on the moon, Catlin led the committee to convince the administration to build its multi-billion-dollar Project Apollo in Massachusetts. The Kennedy administration decided to put it in Houston, which appalled Catlin, who could not believe that any rocket scientist would actually want to live in a “Jim Crow civilization” like Texas. “14-Man Group Formed to Seek Bay State Site for Moon Lab,” Boston Globe, August 8, 1961, 16; and “Moon Lab to Lack Hub Brains; Catlin,” Boston Globe, October 4, 1961, 1.
39. Value, “Vision Comes Easy to ‘Yankee Irishman,’” 20; and Liston, “The Vault,” A4.
40. Editorial, “Kevin White for Mayor,” Boston Globe, November 6, 1967, 16.
41. Lenzner, “Portrait of a Boston Banker,” 31; see also Mollenkopf, John H., The Contested City (Princeton, NJ: Princeton University Press, 1983), 188Google Scholar.
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43. See Reorganization Plan No. 3 of 1970, 3 C.F.R. (1966–1970), published as amended 5 U.S.C. app. (2012).
44. Rachelle Patterson, “First's Howell: Taxpayers’ Man?” Boston Globe, December 20, 1972, 33.
45. Lenzner, “Portrait of a Boston Banker,” 31; Vogel, see note 18, 214.
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47. Lenzner, “Portrait of a Boston Banker,” 31; and “Businessmen in Region Think Defeat, Bank Executive Says,” Hartford Courant, February 22, 1973, 7.
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49. Ibid., 44.
50. Memorandum from Lewis F. Powell, Jr., to Eugene B. Sydnor, Jr., Chairman, Education Committee, United States Chamber of Commerce (August 23, 1971), 24–25 (box 118, folder 10, Lewis F. Powell, Jr., Archives, Washington and Lee University School of Law, Blacksburg, VA [hereafter Powell Archives]).
51. Woodward and Armstrong, The Brethren, 194.
52. See Phillips-Fein, Invisible Hands, 157.
53. For example, Lewis F. Powell, Jr., “Address to the Southern Industrial Relations Conference: The Attack on American Institutions” (July 15, 1970) (box 118, folder 1, Powell Archives).
54. Memorandum from Lewis F. Powell, Jr., to Eugene B. Sydnor, Jr., see note 50, 1; see Letter from Eugene B. Sydnor, Jr., to Lewis F. Powell, Jr. (August 25, 1971) (box 19, folder 39, Powell Archives); and Phillips-Fein, Invisible Hands, 157.
55. News of the memorandum arrived after he had been confirmed to the Supreme Court. Jack Anderson, “Chief Justice Lobbies Against Bill,” Washington Post, October 5, 1972, H7; Jack Anderson, “Powell's Lesson to Business Aired,” Washington Post, September 28, 1972, F7; and Jack Anderson, “FBI Missed Blueprint by Powell,” Washington Post, September 29, 1972, C27.
56. Ibid, 10.
57. Ibid., 10, 26.
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59. Dodge v. Ford Motor Co., 170 N.W. 668, 682–685 (Mich. 1919).
60. See, for example, Brinson Ry. v. Exchange Bank of Springfield, 85 S.E. 634 (Ga. 1915); People ex rel. Maloney v. Pullman's Palace Car Co., 68 N.Y. Supp. 335 (1900); and Hutton v. W. Cork Ry., 23 Ch. D. 654, 673 (1883).
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64. Ibid., 9, 23, 25 (emphasis added).
65. Ibid., 10–11.
66. The Massachusetts Miracle, 19.
67. Susan Trausch, “The First's Jim Howell: Love Him or Hate Him … He Gets Things Done,” Boston Globe, June 1, 1975, 88; Lenzner, “Portrait of a Boston Banker,” C6; “The Dilemma of a Mature Economy and Excessive Government Spending,” New England Letter, December 1971, 1, 3–4 (on file at Baker Library, Harvard Business School, Boston, MA); Laurence Collins, “Howell Sounds the Alarm Again,” Boston Globe, October 18, 1972, 30; First National Bank of Boston, Look Out, Massachusetts!!! (1972), reprinted in The Massachusetts Miracle, 59.
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69. 1971 Annual Report, 2; New England Report, December 1972, 1–3 (on file at Baker Library, Harvard Business School, Boston, MA); see David R. Palmer, “Financiers Cite What's Right with State,” Boston Globe, November 24, 1972, 66; First National Bank Corporation, 1976 Annual Report (1977), 2 (hereafter 1976 Annual Report).
70. See Editorial, “Realism Arriving?” Wall Street Journal, September 21, 1972, 20. The American Banker editorial is quoted in “Economic Maturity,” New England Letter, January 1972, 1–2 (on file at Baker Library, Harvard Business School, Boston, MA).
71. “Mass. to Vote on Graduated Income Tax,” Boston Globe, February 6, 1972, 13.
72. See Revenue Act of 1913, Pub. L. No. 63-16, 38 Stat. 114 (1913).
73. Mass. Const. pt. 2, ch. 1, § 1, art. 4; id. pt. 1, art. 10; see Bettigole v. Assessors of Springfield, 178 N.E.2d 10, 14–15 (1961) (listing cases); see also Statement of Agreed Facts ¶48, First National Bank of Boston v. Attorney General (First Nat'l I), 290 N.E.2d 526 (Mass. 1972) (No. 72-653) (listing the minority of states without a “grad tax”).
74. See Rachelle Patterson, “Graduated Tax Funds Reported,” Boston Globe, October 13, 1972, 4. In 1968, opponents spent $44,000. In 1962, they spent $190,000, with most of the money coming from corporations. See ibid.; and Rachelle Patterson, “Graduated Tax Issue Divides Labor,” Boston Globe, September 12, 1972, 6.
75. Before 1972, corporations could spend money opposing referenda that “materially affected” corporate property. See Act of June 13, 1946, ch. 537, 1946 Mass. Acts 544. The new law declared that a “grad tax” did not materially affect corporate property. Act of June 20, 1972, ch. 458, 1972 Mass. Acts 274, 275. For a longer discussion of this legal history, see Fox, note 17, 76–80.
76. See David Nyhan, “Battle Rages over Grad Tax,” Boston Globe, May 10, 1972, 31.
77. See Rachelle Patterson, “Sargent Says ‘Lies’ Used to Fight Grad Tax,” Boston Globe, November 2, 1972, 1, 24.
78. Rachelle Patterson, “Supreme Court Redefines Law: 4 Companies Permitted to Finance Tax Campaigns,” Boston Globe, October 14, 1972, 3.
79. A.A. Michelson, “Is Business Opening a Fight Against a Graduated Tax?,” Boston Globe, April 15, 1972, 7.
80. Lustwerk v. Lytron, Inc., 183 N.E.2d 871, 871 (Mass. 1962).
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82. Ralph Nader, Mark Green, and Joel Seligman, “Who Rules the Giant Corporation?” Business. & Society Review, June 1, 1976, 40, 42. But see Schnell v. Chris-Craft Industry, Inc., 285 A.2d 437, 439 (Del. 1971) (invalidating an election after “finding that management has attempted to utilize the corporate machinery and the Delaware Law for the purpose of perpetuating itself in office”); Hessen, Robert, In Defense of the Corporation (Stanford, CA: Hoover Institution Press, 1979), 52Google Scholar (objecting to Nader's conclusions and “political metaphor”).
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85. Lenzner, “Prophets of Doom Wrong,” 31.
86. Patterson, “Supreme Court Redefines Law,” 3; and David Nyhan and Rachelle Patterson, “Graduated State Income Tax: Businessmen Spend Big to Kill It,” Boston Globe, October 31, 1972, 3.
87. Plaintiffs’ Brief, 59, 82, First National Bank of Boston v. Attorney General (First Nat'l I), 290 N.E.2d 526 (Mass. 1972) (No. 72-653); Statement of Agreed Facts ¶ 18, First Nat'l I, 290 N.E.2d 526.
88. Plaintiffs’ Brief, 59, First Nat'l I, 290 N.E.2d 526.
89. U.S. Const. amend. XIV., § 1.
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91. U.S. Const. amend. I; see, for example, Gitlow v. New York, 268 U.S. 652 (1925).
92. Plaintiff's’ Reply Brief, 14, 62–63 & n.11, First Nat'l I, 290 N.E.2d 526 (citing Grosjean v. American Press Co., 297 U.S. 233, 244 [1936]).
93. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
94. See Patterson, “Sargent Says ‘Lies’ Used to Fight Grad Tax,” 24. The “grad tax” would raise taxes for people who made more than $20,000; only 212 of the First's 5,500 employees made that much. Statement of Agreed Facts ¶ 12, First Nat'l I, 290 N.E.2d 526.
95. Brief for the Appellee at 38, First National Bank v. Bellotti, 435 U.S. 765 (1978) (No. 76-1172).
96. Patterson, “Supreme Court Redefines Law,” 3. The Court held that the referendum was so poorly written that it could authorize both a graduated personal income tax and, unintentionally, a graduated corporate income tax. See First Nat'l I, 290 N.E.2d, 530–31; and ibid, 541 (Quirico, J., concurring in the result). Under state law at the time, that meant that the First could spend money in opposition to the tax. See note 75.
97. Patterson, “Supreme Court Redefines Law,” 3.
98. Ibid.
99. Patterson, “Graduated Tax Funds Reported,” 4.
100. Rachelle Patterson, “Corporations Big Donors in Tax Battle,” Boston Globe, November 22, 1972, 26; Statement of Agreed Facts ¶ 27, 60, First Nat'l II, 359 N.E.2d 1262.
101. 1975 Annual Report, see note 22, 4; Rachelle Patterson, “Business Leaders Organize to Lobby for State Efficiency,” Boston Globe, September 5, 1973, 1, 62; Harrison, The Economic Development of Massachusetts, 30; Rachelle Patterson, “Group Spent $235,000 to ‘Economize,’” Boston Globe, February 24, 1974, 33; “Letter to the Editor, Henry S. Lodge, Chairman, Citizens for Economy. in Government,” Boston Globe, January 21, 1974, 18; “Advertisement, Citizens for Economy in Government, You Live on a Tight Budget,” Boston Globe, January 16, 1974, 19; “Advertisement, Citizens for Economy. in Government, Swineherders,” Boston Globe, May 13, 1974, 6; Robert Healy, “Business Versus Sargent?” Boston Globe, June 13, 1973, 1; Rachelle Patterson, “Quinn's Friend at the First Authored Impartial Survey,” Boston Globe, July 28, 1974, A5; and John Robinson, “Study Predicts Deficit,” Boston Globe, July 3, 1974, 1.
102. 1975 Annual Report, 4; and Report on Corporate Concern, 1.
103. For more on the rise of Dukakis and other New Democrats during this period, see Geismer, Don't Blame Us, 251.
104. Trausch, “The First's Jim Howell,” 88; “Deficit Prediction Brings Rhetorical Surplus,” Berkshire Eagle, August 6, 1974, 4. It may seem ironic from the perspective of today that the Democratic candidate was supported by business whereas the Republican candidate was derided as too liberal. For more on the complicated and shifting dynamics of the Democratic Party in 1970s Massachusetts, see, generally, Geismer, Don't Blame Us.
105. United States Catholic Conference, Campaign for Human Development Progress Report (1979), 11.
106. Grant Proposal from United Peoples to the Haymarket People's Fund 2 (1976) (box 7, folder 439, Haymarket People's Fund Records, University Archives and Special Collections, University of Massachusetts, Boston, MA).
107. Marian Poverman, “The Liberated Lady Sings the Lower-Class Blues—And Does Something About Them,” Boston Globe, July 7, 1974, A5.
108. Nick King, Robert Rosenthal, and Benjamin Taylor, “Poverty in the Suburbs,” Boston Globe, July 16, 1974, 1.
109. See Motion to Intervene of Coalition for Tax Reform, Inc., and United Peoples, Inc. ¶ 2, First National Bank of Boston v. Attorney General (First Nat'l II), 359 N.E.2d 1262 (Mass. 1976) (No. 76-653); Act of June 1, 1973, ch. 348, 1973 Mass. Acts 247. The ban prohibited corporations from spending money on questions “other than one materially affecting” corporate property, and added that no question “solely” concerning personal taxes “shall be deemed materially to affect” such property. Mass. Gen. Laws Ann. ch. 55, § 8 (West 1978). The “grad tax” proposal authorized the legislature to modify only “the personal income tax laws of Massachusetts.” Plaintiffs’ Brief app. B, First Nat'l II, 359 N.E.2d 1262.
110. First National Boston Corp., 1977 Annual Report (1978), 10 (hereafter 1977 Annual Report); 1978 Annual Report, 3. Catlin retired in 1975, but the First and four other corporations filed a lawsuit nearly identical to the that one he had overseen in 1972. Also as in 1972, the lawsuit was driven primarily by the corporations’ executives; only three of the five boards of directors even voted on whether to file the action. See Ken Hartnett, “Is the Face of Power Really Changing in Boston?” Boston Globe, December 14, 1975, J10, J35.
111. See Motion to Intervene of Coalition for Tax Reform, Inc., and United Peoples, Inc. ¶ 4, First Nat'l II, 359 N.E.2d 1262.
112. Ibid. Ironically, the bank's allies fought back in the press, claiming that United Peoples had no right to participate in the referendum, either, because its members were too poor to pay taxes and because it was funded by federal grant, which meant that federal taxpayers were unwittingly taking sides in a state referendum. See Shirley Scheibla, “Bar Sinister: The Legal Services Corporation Stretches Its Mandate,” Barron's, January 24, 1977, 5; and “Law Reform Institute Defends Tax Campaign,” Boston Globe, October 9, 1976, 3.
113. First Nat'l II, 359 N.E.2d, 784.
114. “High Court to Hear Tax Ballot Case,” Boston Globe, April 19, 1977, 7. In the meantime, as the 1976 referendum proceeded without corporate donations, the First's leadership also appealed to “every bank officer in the state” for a “massive increase in personal contributions.” With the support of individual bankers, opponents of the referendum raised more than $115,000, almost equaling the amount that Catlin had raised in 1972 with corporate donations. Voters again rejected the referendum by a 3–1 margin. A.A. Michelson, “Grad Tax Needs Long Slumber Before New Try,” Boston Globe, November 6, 1976, 7; R.S. Kindleberger, “Graduated Tax—4th Test in 14 Years,” Bos. Globe, October 31, 1976, 44.
115. 410 U.S. 113 (1973) (recognizing a constitutional right to an abortion).
116. 428 U.S. 153 (1976) (reinstituting the death penalty after a temporary ban).
117. See Bernard Schwartz, “Freedom of Speech,” in The Burger Court: Counter-Revolution or Confirmation? 93, 95 (“Justice Powell was the primary author of the Burger Court jurisprudence covering commercial speech.”).
118. See, for example, Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) (restricting states’ power to criminalize incitement); and Tinker v. Des Moines Independent School District., 393 U.S. 503 (1969) (protecting the right of students to protest the Vietnam War).
119. 357 U.S. 449 (1958).
120. 376 U.S. 503 (1964).
121. See, for example, United States v. O'Brien, 391 U.S. 367 (1968) (holding that burning a draft card is not protected); and Roth v. United States, 354 U.S. 476 (1957) (holding that obscenity is not protected); see also Valentine v. Chrestensen, 316 U.S. 52 (1942) (holding that commercial advertisements are not protected).
122. Emerson, Thomas I., The System of Freedom of Expression (1970), 6Google Scholar.
123. Meiklejohn, Alexander, Free Speech and Its Relation to Self-Government (1948), 3–4Google Scholar.
124. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
125. See Brennan, William J. Jr., “The Supreme Court and the Meiklejohn Interpretation of the First Amendment,” Harvard Law Review 79 (New Haven, CT: Yale University Press, 1965), 1, 9Google Scholar; Bickel, Alexander M., The Morality of Consent (1975), 57Google Scholar. Doctrinally, this balancing has developed into a three-part test. First, is the speech protected by the First Amendment? If so, does the government have a sufficiently compelling reason to restrict it? Finally, is the restriction calibrated to restrict as little speech as possible? See, for example, McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014).
126. 425 U.S. 748, 762–65 (1976); see Schwartz, “Freedom of Speech,” 95–96 (discussing Powell's contribution).
127. Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., 761; see also Bigelow v. Virginia, 421 U.S. 809 (1975).
128. Buckley v. Valeo, 424 U.S. 1, 15–16 (1976) (per curiam).
129. That phrase comes from a 1975 advisory opinion by the Federal Election Commission that authorized corporations not only to solicit donations from employees, but also to use a wage-checkoff system. Federal Election Commission, Advisory Opinion 1975-23, 40 Fed. Reg. 56584 (1975). A footnote in Buckley cited that opinion with approval and also authorized businesses to create a new PAC for each of their subsidiaries or divisions. 424 U.S. at 28 n.31. The effect was immediate: in 1974, there were only 89 corporate PACs compared with 201 labor PACs. News Release, Federal Election Commission, “Number of Federal PACs Increases,” March 9, 2009 http://www.fec.gov/press/press2009/20090309PACcount.shtml (last accessed July 29, 2018). By the end of 1976, corporate PACs outnumbered union PACs 433 to 224. (By 2009, the ratio was 1,598 to 272). Ibid. The First National Bank created its first PAC in 1978. Jonathan Fuerbringer, “Office Giving Puts Clout in Political Action,” Bos. Globe, October 11, 1978, 1.
130. 431 U.S. 209 (1977).
131. Brief for Appellants at 16, First National Bank v. Bellotti, 435 U.S. 765 (1978) (No. 76-1172).
132. Ibid, 42.
133. Ibid.
134. Ibid., 16, 62.
135. Although United Peoples was permitted to intervene before the Supreme Judicial Court of Massachusetts, only the attorney general argued before the Supreme Court.
136. Brief for the Appellee at 13–14, First National Bank of Boston v. Bellotti, 435 U.S. 765 (quoting Trustees of Dartmouth College. v. Woodward, 17 U.S. 518, 636 [1819]).
137. Ibid., 14.
138. Ibid., 13.
139. Ibid., 38.
140. Memorandum from Justice Lewis F. Powell, Jr., 8 (1977) (box 76-1172, folder 1, Powell Archives) (hereafter Summer Memorandum).
141. See Bench Memorandum from Nancy Bergstein to Mr. Justice Powell, 2–3 (September 13, 1977) (box 76-1172, folder 1, Powell Archives).
142. First National Bank of Boston v. Bellotti, 435 U.S., at 777.
143. Summer Memorandum, 7.
144. First National Bank of Boston v. Bellotti, 435 U.S., at 794.
145. Ibid., 794–95.
146. Ibid..
147. See Berle and Means, The Modern Corporation and Private Property, 69–118.
148. Manning, Bayless, “The American Stockholder,” Yale Law Journal 67 (1958): 1477, 1489CrossRefGoogle Scholar (book review); see notes 81–83.
149. Berle and Means, The Modern Corporation and Private Property, 84, 89; see Brandeis, Other People's Money, 7–8.
150. Note, “Corporate Political Affairs Programs,” 95.
151. Memorandum from Chief Justice Warren E. Burger to Justice William J. Brennan, Jr. (December 6, 1977) (box 76-1172, folder 1, Powell Archives).
152. Laurence Collins, “It Was Quite a Meeting at the First,” Boston Globe, April 1, 1977, 26.
153. Ibid.
154. Manning, “The American Stockholder,” 1489.
155. Memorandum from Justice Lewis F. Powell to Justice William Rehnquist, 2 (April 17, 1978) (box 76-1172, folder 3, Powell Archives).
156. Ibid., 2–3.
157. Ibid., 3.
158. See Quincy, Josiah, A Municipal History of the Town and City of Boston (Boston: Charles C. Little & James Brown, 1852), 1–2Google Scholar; Maier, Pauline, “The Revolutionary Origins of the American Corporation,” William & Mary Law Journal 50 (1993) 51, 60Google Scholar. See, generally, Griffith, Ernest, History of American City Government (New York: Oxford University Press, 1938), 21–26Google Scholar; and Webb, Beatrice and Webb, Sidney, English Local Government from the Revolution to the Municipal Corporations Act: The Manor and the Borough (New York: Longmans, Green, 1908), 271Google Scholar.
159. Maier, Pauline, “The Debate over Incorporations: Massachusetts in the Early Republic,” in Massachusetts and the New Nation, ed. Wright, Conrad Edick (Boston: Northeastern University Press, 1992), 73–117Google Scholar.
160. Horwitz, The Transformation of American Law, 1870–1960, 109–26; and Handlin and Handlin, Commonwealth, 100–114.
161. See Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). See, generally, Frug, Gerald, City Making (Princeton, NJ: Princeton University Press, 1999)Google Scholar; Hartog, Hendrik, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870 (Chapel Hill, NC: University of North Carolina Press, 1983)Google Scholar; and Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1977)Google Scholar.
162. 207 U.S. 161, 178.
163. Ibid.; see Dillon, John F., Treatise on the Law of Municipal Corporations (Chicago, James Cockcroft & Co., 1872), 25–26Google Scholar (calling on courts “to lean against constructive powers and, with firm hands, to hold them and their officers within chartered limits”).
164. Boston was not the only city whose leaders thought of themselves as corporate executives. For criticism of this cultural trend, see Frug, City Making, 52–53.
165. See O'Connor, The Boston Irish, 234–35; and White, Andrew D., “The Government of American Cities,” Forum 10 (1890): 357–72Google Scholar.
166. Matthews, Mayor Nathan Jr., The City Government of Boston 179–81 (Boston: Rockwell & Churchill, 1895)Google Scholar.
167. See Heyman, Philip B. and Weinberg, Martha Wagner, “The Paradox of Power: Mayoral Leadership on Charter Reform in Boston,” in American Politics and Public Policy, ed Burnham, Walter D. and Weinberg, Martha Wagner (Cambridge, MA: MIT Press, 1978), 280, 292–93Google Scholar.
168. John Anthony Breen, Radio Address (1945–46), reprinted in “Historical Perspective on Boston Charter,” Beacon Hill Times, May 1, 1977, 6–7.
169. Editorial, “Kevin White for Mayor,” 16; and Lupo, Liberty's Chosen Home, 99.
170. See Geismer, Don't Blame Us, at 149–50.
171. Weinberg, Martha Wagner, “Boston's Kevin White: A Mayor Who Survives,” in Boston 1700–1980: The Evolution of Urban Politics, ed. Formisano, Ronald P. and Burns, Constance K. (Westport, CT: Greenwood Press, 1984), 215, 221Google Scholar.
172. Robert Lenzner, “Boston's Improved Financial Condition Praised,” Boston Globe, January 29, 1979, 8.
173. Liz Roman Gallese, “Boston's Battling Treasurer,” Boston Globe, April 17, 1977, 1.
174. Neil Roiter, “Battle Lines Drawn on Classification,” Boston Ledger, September 22, 1978, 9.
175. See Lupo, Liberty's Chosen Home, 86–87; Boston Municipal Research Bureau, The Boston Property Tax (1973) (box 39, folder 15, White Records).
176. See First National Bank of Boston, “Older Urban Areas in America: The Case for Metropolitan Government,” New England Report, Spring 1976, 6 (on file at Baker Library, Harvard Business School, Boston, MA); Editorial, “The City's Balance Sheet,” Boston Globe, November 22, 1976, 18.
177. See Formisano, Ronald P., Boston Against Busing (Chapel Hill, NC: University of North Carolina Press, 1991), 173CrossRefGoogle Scholar; and J. Anthony Lukas, Common Ground (1985), 433–36. Compare Jackson, Kenneth T., Crabgrass Frontier (New York: Knopf, 1985), 284–286Google Scholar (discussing a similar pattern elsewhere); and Sugrue, Thomas J., The Origins of the Urban Crisis (Princeton, NJ: Princeton University Press, 2005), xxii, 139–140Google Scholar.
178. See Office of the Mayor, City of Boston, Boston's Tax Strategy: The Fiscal Experience of the City (1974), 25–27 (box 20, folder 52, White Records).
179. Gary McMillan, “Pension Costs Choking Boston,” Boston Globe, October 17, 1976, A3.
180. Ibid.
181. David Rogers, “Hub Gets Bad News: Tax Rate Up $56.20,” Boston Globe, September 17, 1976, A3; Office of the Mayor, City of Boston, Charter Reform Briefing (Undated, c. 1977), 3 (box 21, folder 42, White Records); and Press Release, Office of the Mayor, City of Boston (December 3, 1976) (box 21, folder 37, White Records).
182. Press Release, Committee for Responsible Charter Reform (January 19, 1977) (box 69, folder 30, White Records); Carol Surkin, “Charter Reform an Abuse Act,” Boston Globe, January 11, 1977, 12; and Editorial, “The Charter Package,” Boston Globe, December 30, 1976, 22. For more on the charter reform effort, see Heyman and Weinberg, “The Paradox of Power,” 287–89.
183. The mayor lost a similar referendum in 1974. See Robert A. Jordan, “White Rules Out Seeking School Reforms,” Boston Globe, November 7, 1974, 3.
184. Office of the Mayor, City of Boston, Testimony of State Reps at Joint Committee on Local Affairs (February 9, 1977), 1–2; Finance Commission of the City of Boston, Report to the Great and General Court on the Boston Charter Reform Act of 1977 (February 7, 1977), 2–6 (box 44, folder 37, White Records); Office of the Mayor, City of Boston, Finance Commission Hearings on Charter Reform (January 27, 1977), 1 (box 44, folder 27, White Records) (hereafter Office of the Mayor, January 27 Hearing Summary); and Combined Neighborhood Groups and Interested Parents of Boston, Outline Plan for Combined Neighborhood Groups and Interested Parents of Boston (January 1977) 1 (box 69, folder 30, White Records).
185. Office of the Mayor, City of Boston, Finance Commission Hearing on Charter Reform (January 25, 1977), 1 (box 44, folder 37, White Records) (summarizing testimony); and Finance Commission of the City of Boston, Report to the Great and General Court, 3.
186. See Robert Lenzner, “That Cut in Boston's Rating,” Boston Globe, January 29, 1976, 22.
187. See Jonathan Fuerbringer, “How'd We Get into This Fiscal Mess,” Boston Globe, November 21, 1976, 1.
188. See, ibid; Jonathan Fuerbringer and Robert L. Turner, “Banker Expects Boston Will Get Short-Term Loans,” Boston Globe, November 23, 1976, 1.
189. See “It Can't Happen Here or Could It?” Boston Globe, May 6, 1979, M9; Jonathan Fuerbringer, “That Beast, The Bond Market,” Boston Globe, December 25, 1976, 26; Kay Longcope, “Boston Crisis Helps Business, Professor Says,” Boston Globe, December 9, 1976, 8; Letter to the Editor, Richard D. Hill, Chairman, First National Bank of Boston, “First National Bank Clarifies Loan Position,” Boston Globe, December 1, 1976, 26.
190. “It Can't Happen Here or Could It?” M9.
191. See Lawrence DiCara, Turmoil and Transition in Boston (2013), 58.
192. See, generally, Office of the Deputy Mayor for Fiscal Affairs, City of Boston, Plain Speaking: 100% Valuation, Property Classification, and You (1978) (box 44, folder 10, White Records); and “Some Questions and Answers on Classification,” Boston Globe, November 5, 1978, 14.
193. See John O'Keefe, “Only Half of Bay State Cities, Towns Use ‘Full and Fair’ Valuations for Taxes,” Boston Globe, August 6, 1973, 14.
194. See Bettigole v. Assessors of Springfield, 178 N.E.2d 10 (Mass. 1961).
195. See Town of Sudbury v. Commission of Corporations & Taxation, 321 N.E.2d 641 (Mass. 1974).
196. Michael Ansara, “Unfair Property Tax Must Give Way to a Graduated State Income Tax,” Boston Globe, January 13, 1975, 23.
197. Raymond G. Torto, Estimating the Impact of 100% Valuation and Taxation by Classification in Massachusetts (1978) (box 22, folder 43, White Records).
198. Press Release, Office of the Mayor, City of Boston (December 27, 1974) (box 22, folder 49, White Records).
199. [Untitled], Boson Globe, April 8, 1978 (box 44, folder 13, White Records).
200. Press Release, Office of the Mayor, City of Boston (January 7, 1975) (box 22, folder 49, White Records); Press Release, Office of the Mayor, City of Boston (January 14, 1975) (box 22, folder 49, White Records); and Press Release, Office of the Mayor, City of Boston (January 13, 1975) (box 22, folder 49, White Records).
201. See Finance Commission of the City of Boston, Report on Rent Control Commission Employees' Contributions to the Kevin H. White Democratic Unity Committee (1976), 1–2, n.
202. Press Release, Office of the Mayor, City of Boston (May 29, 1975) (box 22, folder 49, White Records);
203. Jak Miner, “Guns Roll up for Classification Amendment Battle,” Christian Science Monitor (box 44, folder 13, White Records).
204. Letter from Kevin H. White, Mayor of Boston, to Thomas Early, Mayor of Worcester (February 15, 1978) (box 94, folder 68, White Records).
205. Peter Cowen, “White Plans Public Battle on Valuation,” Boston Globe, May 10, 1978, 7.
206. Ibid.
207. Memorandum from Micho F. Spring to Kevin H. White, Mayor (May 25, 1978) (box 70, folder 1, White Records); see Tribe, Laurence H., American Constitutional Law (Mineola, NY: Foundation Press, 1978)Google Scholar.
208. Laurence H. Tribe, Memorandum of Law on the Power of a Municipality to Expend Public Funds to Urge Adoption of an Amendment to the State Constitution (1978) (box 70, folder 1, White Records).
209. Ibid., 3.
210. Ibid., 2–3.
211. Ibid., 2.
212. Letter from Kevin H. White, Mayor of Boston, to Massachusetts Mayors Association (April 27, 1978), 1 (box 44, folder 13, White Records).
213. “Mayors Map Battle Plans,” Worcester Telegram, March 11, 1978, 1, 10; and Memorandum from Office of the Mayor, City of Boston (January 1978) (box 70, folder 1, White Records).
214. Memorandum from James Sullivan, Chairman, Legislative Committee, Massachusetts Mayors Association, to Massachusetts Mayors Association (April 27, 1978) (box 44, folder 13, White Records); and “Committee Formed to Fight Revaluation,” W. Roxbury Transcript, March 22, 1978 (box 44, folder 13, White Records).
215. Cowen, “White Plans Public Battle on Valuation,” 7.
216. Ibid.; and Miner, “Guns Roll up for Classification Amendment Battle.”
217. Letter from Kevin H. White (April 27, 1978), 1; and Mayors Map Battle Plans, see note 214, 10.
218. Letter from Kevin H. White, (April 27, 1978), 3; and Memorandum from Raymond G. Torto (April 12, 1978), 3–4.
219. 435 U.S. 765 (1978).
220. Rogers and Richard, “We'd Spend Public Funds on Issues—White,” 8.
221. Ibid.
222. Ibid.
223. Mayor Kevin H. White, Address to the Boston City Council (May 31, 1978), 1 (box 70, folder 1, White Records).
224. Ibid., 4.
225. Ibid., 5.
226. Ibid., 6. Before the city council could act on his request, the mayor authorized his staff to spend $1,000,000 in public funds on a new Office of Public Information on Classification, whether or not he received council approval. Eisner, “White to Spend $1M.”
227. Mitch Keller, “Sansone Believes White's PR Plan is a Crafty Ruse,” Boston Herald American, June 4, 1978 (box 22, folder 39, White Records).
228. Eisner, “White to Spend $1M.”
229. Alan Eisner and Mitch Keller, “Referendum Spending Still Divides White,” Council, Boston Herald American, June 1, 1978 (box 22, folder 39, White Records).
230. Editorial, “It's Your Money, Not His,” Boston Herald American, May 31, 1978 (box 22, folder 39, White Records).
231. Ibid.
232. Ibid.
233. Al Larkin, “Business Raises $100,000 to Oppose Classification Bill,” Boston Globe, September 14, 1978, 27.
234. Mitch Keller, “Mass. Fair Share Marchers Close Down a Bank—Briefly,” Boston Herald American, September 29, 1978 (box 22, folder 40, White Records).
235. Lonnie Isabel, “Taxpayer Groups and Bank Officials Fail to Resolve Classification Dispute,” Boston Globe, October 5, 1978, 3.
236. Peter Cowen, “Council Authorizes $975,000 to Push for Tax Amendment,” Boston Globe, June 9, 1978, 3.
237. Peter Cowen, “Mass. Drive Launched to Beat Varied-Tax Plan,” Boston Globe, July 8, 1978, 14.
238. David Rogers, “White Gets Council OK on Tax Ads,” Boston Globe, May 18, 1978 (box 22, folder 39, White Records).
239. Peter Cowen, “White Vows All-Out Drive for Property Tax Change,” Boton. Globe, June 1, 1978, 21.
240. Alan Eisner, “Council Asked to Spend $1.8M on Tax Curb Fight,” Boston Herald American, May 31, 1978 (box 22, folder 39, White Records).
241. Peter Cowen, “Council Urged to Back White Tax Amendment,” Boston Globe, June 6, 1978, 7.
242. Ibid.
243. “Residents to Council: ‘Back Tax Amendment,’” Boston Herald American, June 6, 1978 (box 22, folder 39, White Records).
244. Cowen, “Council Urged,” 7.
245. Eisner, “Council Asked”; Joint Appendix, at A, Anderson v. City of Boston, 380 N.E.2d 628 (Mass. 1978) (No. 78-253).
246. Cowen, “Council Authorizes,” 3.
247. Joint Appendix, at C, Anderson v. City of Boston.
248. Ibid.
249. Alan Eisner, “No Holiday for White's Tax Troops,” Boston Herald American, June 17, 1978 (box 22, folder 39, White Records).
250. Memorandum from Mark to Micho Spring (July 21, 1978), 1–2 (box 95, folder 39, White Records).
251. Ibid.
252. Peter Cowen, “Tax Suit Plaintiffs Show Corporate Profile,” Boston Globe, July 13, 1978, 10.
253. Cowen, “Mass. Drive Launched,” 14.
254. Alan Eisner, “White Gives City Funds to Tax Campaign,” Boston Herald American, July 6, 1978 (box 22, folder 39, White Records).
255. Ibid.
256. Peter Cowen, “White's New Spending Plan Fought in Court,” Boston Globe, July 7, 1978, 3.
257. See Memorandum from Jerry Mechling, Director, Office of Management & Budget, to Kevin H. White, Mayor, and James V. Young, Deputy Mayor (September 11, 1978) (box 117, folder 21, White Records).
258. See, generally, Lara Kalman, Right Star Rising (2010); Jefferson Cowie, Stayin’ Alive (2010); Cowie & Salvatore, “The Long Exception,” 3.
259. Alex McPhail, “White's Tax Classification Push Called Re-election Ruse,” Boston Herald American, August 18, 1978 (box 22, folder 39, White Records); and Memorandum from Maureen Schaffner to Mayor Kevin H. White (August. 7, 1978), 3 (box 22, folder 47, White Records); see also Office of the Mayor, City of Boston, Classification Training Session Closing Remarks (August 16, 1978) (box 70, folder 1, White Records).
260. Memorandum from Jack Lew to Jerry Mechling, Director, Office of Management & Budget (June 16, 1978), 3–5 (box 117, folder 23, White Records).
261. Jak Miner, “Tax Money for Ballot Campaign? Boston Tests the Idea,” Christian Sci. Monitor, July 11, 1978, 11.
262. Brief for the Defendants, 10, 22–24, Anderson v. City of Boston, 380 N.E.2d 628 (Mass. 1978) (No. 78-253) (quoting County of Bergen v. Port of N.Y. Authority, 160 A.2d 811 (N.J. 1960); and City Affairs Committee v. Board of Commissioners, 46 A.2d 425, 426–27 (N.J. Ct. of Errs. & App. 1946)).
263. Brief for the Defendants, 25.
264. Ibid., 23.
265. Ibid., 33–34.
266. Plaintiffs’ Brief, 19, Anderson v. City of Boston, 380 N.E.2d 628.
267. Ibid., 17–21.
268. David Rogers, “Court Rules Out City Funds for Tax Amendment,” Boston Globe, July 20, 1978, 1.
269. Anderson v. City of Boston, 380 N.E.2d, 638–39.
270. Ibid.
271. Ibid., 639–40.
272. See David J. Barron, “The Promise of Tribe's City,” Tulsa Law Review 42 (2007): 811.
273. Jurisdictional Statement, 21, City of Boston v. Anderson, 439 U.S. 1389 (1978) (Nos. A-355, 78-649) (quoting Grosjean v. American Press Co., 297 U.S. 233, 243 [1936]).
274. See ibid.
275. Ibid., 19.
276. See Alex McPhail, “City Workers’ Island Weekend—A Command Performance?” Boston Herald American, August 17, 1978 (box 95, folder 51, White Records).
277. Memorandum from Micho F. Spring to Kevin H. White, Mayor (August 17, 1978), 4 (box 95, folder 51, White Records).
278. Jurisdictional Statement, 12, City of Boston v. Anderson, 439 U.S. 1389 (1978).
279. Ibid., 33–34.
280. City of Boston v. Anderson, 435 U.S. 1389, 1389–90 (1978) (in chambers opinion of Brennan, J.). The following week, the Court rejected the taxpayers’ attempt to vacate Justice Brennan's stay, over a strong dissent by Justice John Paul Stevens, who quoted Hunter v. City of Pittsburgh to argue that Massachusetts “may do as it will” with its cities. City of Boston v. Anderson, 439 U.S. 951, 951–52, and n.2 (1978) (Stevens, J., dissenting).
281. David Rogers, “White Seeks a Strategy for Tax Campaign Money,” Boston Globe, October 24, 1978, 10.
282. David Rogers, “Question 1 Piles up Big Margin in Cities,” Boston Globe, November 8, 1978, 1; and Bob Kuttner, “Turning Tax Rebellion into Tax Reform,” Washington Post, November 5, 1978, D1, D3.
283. Rogers, “White Seeks a Strategy,” 10.
284. Kuttner, “Turning Tax Rebellion into Tax Reform,” D1, D3. In the wake of Proposition 13's passage in California, other national observers called the classification campaign an unusually liberal variation on “Prop. 13 fever.” See, for example, James M. Perry, “Sons of Prop. 13,” Wall Street Journal, November 9, 1978, 4; “Rebellion Seeks Tax Reform,” Hartford Courant, November 5, 1978, at 33; and “Revolt of the Homeowners,” Time, May 8, 1978, 13.
285. Advertisement, Committee Against Property Tax Discrimination, “Don't Play Mayor White's Property Tax Shell Game,” Boston Globe, November 3, 1978, 19.
286. David Rogers, “Classification Foes Zero in on White,” Boston Globe, November 2, 1978, 36; see also Letter to the Editor, Richard Anderson, Executive Director, Committee Against Property Tax Discrimination, “Classification Would Jeopardize Economic Future,” Boston Globe, November 2, 1978, 22.
287. Mike Barnicle, “Question One: Businesses vs. the People,” Boston Globe, November 6, 1978 (box 22, folder 40, White Records).
288. Mayor Kevin H. White, Boston Victory Speech (November 7, 1978), 5 (box 95, folder 139, White Records).
289. Ibid., 5, 8.
290. Ibid., 8.
291. Mayor Kevin H. White, State of the City Address (January 2, 1979), 7 (box 96, folder 35, White Records).
292. Editorial, “Spending and Speaking,” 22.
293. Editorial, “The Costs of Free Speech,” 18.
294. Ibid.
295. Editorial, “Spending and Speaking,” 22.
296. Editorial, “… and White's,” Boston Globe, November 1978 (box 22, folder 46, White Records).
297. Ibid.
298. Editorial, “Spending and Speaking,” 22.
299. Editorial, “The Costs of Free Speech,” 18.
300. Ibid.
301. Ibid. One of the mayor's advisors estimated that 73% of the owners of Massachusetts corporations lived outside the commonwealth. See Letter from Joseph Slavet, Director, Boston Urban Observatory, to Kevin H. White, Mayor (September 6, 1978), 2 (box 22, folder 42, White Records).
302. Editorial, “The Costs of Free Speech,” 18.
303. Ibid.
304. Compare Brandeis, Other People's Money.
305. S. Prakash Sethi, “Let Shareholders Vote on Corporate ‘Free Speech,’” Wall Street Journal, January 5, 1979, 10.
306. Ibid.
307. As the board of United Peoples wrote in a grant application, “Each member of the staff received help from United Peoples and became strongly interested in the goals and ideals of the organization… . Our working style is characterized by the involvement of low-income members and staff. As a staff group we don't have to guess at how it may feel to be evicted, rejected, insulted, etc.; we are all still there where it is happening.” Grant Proposal from United Peoples to the Haymarket People's Fund, see note 106, 2–3.
308. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 805 (White, J., dissenting).
309. Yudof, “When Government Speaks,” 870.
310. For examples of recent responses that do analyze the representative nature of business corporations, see generally Bebchuk and Jackson, “Corporate Political Speech,” 83; Bebchuk, Lucian, “The Case for Increasing Shareholder Power,” Harvard Law Review 118 (2005): 833Google Scholar; Winkler, Adam, “The Corporation in Election Law,” Loyola of Los Angeles Law Review 32 (1999): 1243, 1260–66Google Scholar; Winkler, Adam, “Beyond Bellotti,” Loyola of Los Angeles Law Review 32 (1998): 133, 138Google Scholar; and Fox, “Corporate Political Speech,” 97.
311. City of Boston v. Anderson, 435 U.S. 1389, 1390 (1978) (in chambers opinion of Brennan, J.).
312. City of Boston v. Anderson, 439 U.S. 1060, 1060 (1979). Justices Brennan, Blackmun, and Powell voted to hear the case. Linda Greenhouse, “Wedding Bells,” New York Times (March 20, 2013) http://nyti.ms/1rvdIfy (last accessed July 29, 2018); see also Hicks v. Miranda, 422 U.S. 332, 343–345 (1975) (explaining that such a dismissal “was the formulaic way of saying the equivalent of ‘there is so little to this case that we don't even have to bother hearing it.’”).
313. In the early 1990s, after Justice Brennan retired from the Supreme Court, he and Tribe co-taught a seminar at the University of Miami Law School. Tribe recalls “that he confirmed my hunch that the Court's final ruling was based on mootness.” Email from Laurence Tribe to Nikolas Bowie (August 1, 2017, at 10:31 a.m.) (on file with author).
314. See, for example, 558 U.S. 310, 349 (quoting Bellotti, 435 U.S., 777).
315. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 663 (1990). The Court had allowed Congress and states to regulate business corporations differently from labor unions or ideological corporations such as the NAACP, in which “the contributors obviously like the message they are hearing from these organizations.” Federal Elections Commission v. Nat'l Conservative Political Action Committee, 470 U.S. 480, 495 (1985); see Federal Elections Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 260 (1986); Federal Elections Commission v. National Right to Work Committee, 459 U.S. 197, 210–11 (1982); Citizens Against Rent Control/Coalion for Fair Housing v. City of Berkeley, 454 U.S. 290, 296 (1981); and California Medical Associationn v. Federal Elections Commission, 453 U.S. 182, 196 (1981).
316. Citizens United, 558 U.S., at 349 (quoting Bellotti, 435 U.S. at 777).
317. Ibid., 361–62.
318. A point Tribe developed further in law review articles. See, for example, Tribe, Laurence H., “Toward a Metatheory of Free Speech,” Southwestern University Law Review 10 (1978): 237, 245Google Scholar.
319. Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015); see also, for example, Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009); Johanns v. Livestock Marketing Association, 544 U.S. 550, 553 (2005); Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 234–35 (2000); National Endowment for the Arts v. Finley, 524 U.S. 569, 598–99 (1998); Rosenberger v. Rector & Visitors, 515 U.S. 819, 833 (1995); and Rust v. Sullivan, 500 U.S. 173, 196 (1991). For historical context on Johanns and the development of this doctrine, see generally Milov, Sarah, “Promoting Agriculture: Farmers, The State, and Checkoff Marketing,” Business History Review 90 (2016): 505CrossRefGoogle Scholar.
320. See Meiklejohn, Alexander, Free Speech and Its Relation to Self-Government (New York: Harper, 1948), 8–9, 68Google Scholar; Emerson, Thomas I., The System of Freedom of Expression (New York: Random House, 1970), 17–18, 708–17Google Scholar; Post, Robert, “Recuperating First Amendment Doctrine,” Stanford Law Review 47 (1995): 1249, 1273CrossRefGoogle Scholar; Sunstein, Cass R., “Free Speech Now,” University of Chicago Law. Review 59 (1992): 255, 258–62CrossRefGoogle Scholar; and Meiklejohn, Alexander, “The First Amendment is an Absolute,” Supreme Court Review 1961 (1961): 245CrossRefGoogle Scholar.
321. See Page v. Lexington County School District One, 531 F.3d 275 (4th Cir. 2008); Kidwell v. City of Union, 462 F.3d 620 (6th Cir. 2006); Cook v. Baca, 12 F. App'x 640 (10th Cir. 2001); D.C. Common Cause v. District of Columbia, 858 F.2d 1 (D.C. Cir. 1988); Campbell v. Joint District 28-J, 704 F.2d 501 (10th Cir. 1983); Adams v. Maine Municipal Association, No. 1:10-CV-00258-JAW, 2013 WL 9246553 (D. Me. Feb. 14, 2013); Alabama Libertarian Party v. City of Birmingham, 694 F. Supp. 814 (N.D. Ala. 1988); Mountain States Legal Found. v. Denver School District, 459 F. Supp. 357 (D. Colo. 1978); Daims v. Town of Brattleboro, 148 A.3d 185 (Vt. 2016); Fraternal Order of Police v. Montgomery County, 132 A.3d 311 (Md. 2016); Burt v. Blumenauer, 699 P.2d 168 (Or. 1985); Young v. Red Clay Consolidated School District, 122 A.3d 784 (Del. Ch. 2015); Peraica v. Riverside-Brookfield High School District No. 208, 999 N.E.2d 399 (App. Ct. Ill. 2013); Kromko v. City of Tucson, 47 P.3d 1137 (Ct. App. Ariz. 2002); and Carter v. City of Las Cruces, 915 P.2d 336 (Ct. App. N.M. 1996). Many cases also preceded the Supreme Court's 1979 decision. See Anderson v. City of Boston, 380 N.E.2d 628 (Mass. 1978); Stanson v. Mott, 551 P.2d 1 (Cal. 1976); Citizens to Protect Public Funds v. Board of Education, 98 A.2d 673 (N.J. 1953) (Brennan, J.); City Affairs Committee v. Board of Commissioners, 46 A.2d 425 (N.J. 1946); Sims v. Moeur, 19 P.2d 679 (Ariz. 1933); Elsenau v. City of Chicago, 165 N.E. 129 (Ill. 1929); Mines v. Del Valle, 257 P. 530 (Cal. 1927); State ex rel. Port of Seattle v. Superior Court, 160 P. 755 (Wash. 1916); Stern v. Kramarsky, 84 Misc. 2d 447 (Sup. Ct. N.Y. 1975); and Porter v. Tiffany, 502 P.2d 1385 (Ct. App. Or. 1972).
322. See Ely, John Hart, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980), 75–104Google Scholar; Levinson, Daryl and Sachs, Benjamin I., “Political Entrenchment and Public Law,” Yale Law Journal 125 (2015): 400, 411Google Scholar.
