There's been a (predictable) spate of academic writing lately on the constitutional tights rights of corporations prompted by the controversial Citizens United decision:
Elizabeth Pollman, Reconceiving Corporate Personhood
Why is a corporation a “person” for purposes of the Constitution? This old question has become new again with public outrage over Citizens United, the recent campaign finance case which expanded corporate constitutional speech rights. This Article traces the historical and jurisprudential developments of corporate personhood and concludes that the doctrine’s origins had the limited purview of protecting individuals’ property and contract interests. Over time, the Supreme Court expanded the doctrine without a coherent explanation or consistent approach. The Court has relied on the older cases that were decided in different contexts and on various flawed conceptions of the corporation. This Article argues that the doctrine of corporate personhood should be understood as only the recognition of a corporation’s ability to hold rights in order to protect the individuals behind it. Properly understood, corporate personhood is only a starting point for analysis and not a justification for granting or denying rights to corporations. Further, the Article suggests an alternative approach for determining the scope of corporate rights. Corporations should hold a constitutional right only when the objective behind the particular right is furthered by providing the corporation, and thereby the people underlying the corporation, with such right.
Reza Dibadj, Citizens United as Corporate Law Narrative
In a 5-4 opinion, decided January 21, 2010, Citizens United struck down § 203 of the Bipartisan Campaign Reform Act of 2002 which prohibited corporations and unions from using general treasury funds for “electioneering communications” – defined as broadcast, cable or satellite communications that are publicly distributed, within 30 days of a primary election and 60 days of a general election, and advocate for or against a particular candidate in a federal election. This Essay analyzes Citizens United through two lenses – constitutional law and corporate law. It suggests that while the majority’s opinion is breathtaking as a piece of constitutional law, it is actually unremarkable when considered as a narrative in corporate law.
The argument is structured into two principal sections. Part I argues that the opinion is truly unusual from a constitutional perspective. To begin with, it eschews the principle of constitutional avoidance, refuses to consider § 203 as a time, place and manner restriction, and pays precious little attention to stare decisis. Beyond these technical concerns, the majority’s opinion presents deeper constitutional issues: its bold rhetoric is divorced from First Amendment doctrines, other relevant constitutional provisions are ignored, and untested assumptions are proffered about money and speech, corruption, and corporate constitutional rights. By contrast, Part II suggests that the opinion is entirely unremarkable when viewed through the narrative of corporate law. By giving corporations the ability to use general treasury monies to fund political speech, the majority in Citizens United is privileging a class of corporate insiders in a manner consistent with corporate doctrines such as the business judgment rule. Moreover, the opinion’s depiction of voters as autonomous, rational, well-informed participants in political discourse has striking parallels to the manner in which corporate law idealizes shareholders.
Larry E. Ribstein, The First Amendment and Corporate Governance
The Supreme Court's decision in Citizens United did not end the controversy over regulating corporate speech. Although the Court broadly subjected regulation of corporate speech to the First Amendment, it did not wholly preclude regulation of corporate governance processes that produce corporate speech. The Court's opinion therefore shifted debate concerning corporate speech from corporations' "external" distortion of the political process to their "internal" distortion of shareholders' self-expression. This paper shows that regulation of the corporate governance process that produces speech faces significant obstacles under the First Amendment. These include the limited efficacy of regulation of corporate governance, regulation's potential for protecting the expressive rights of some shareholders by suppressing others, and the uncertain implications of this rationale for types of speech other than that involved in Citizens United. These problems with the corporate governance rationale for regulating corporate speech suggest that protection of shareholders' expressive rights may be trumped by society's interest in hearing corporate speech and the First Amendment''s central goal of preventing government censorship.
Predictably, I liked Ribstein's paper best, but I'm biased that way for a lot of reasons.
Meanwhile, in not entirely unrelated news, a Florida woman has found a unique way of protesting the Citizens United decision:
Sarah “Echo” Steiner of Lake Worth, Florida, will hold a press conference on Saturday, January 22, to announce her search for a suitable corporate spouse, reports the Undernews blog of Sam Smith’s Progressive Review, citing a Facebook press release put out by Steiner.
Citizens United specifically recognized corporate personhood when it comes to political donations, but a host of observers worry that corporate rights are going to continue to creep into realms previously reserved for humans.
Steiner tells the Broward-Palm Beach New Times, which savvily points out that “the effort is something of a political stunt,” that she wants to draw attention to the one-year anniversary of Citizens United. She is a Green Party member who’s active in party politics—and of course, she’s single.
