Noting the pending two-year anniversary of Citizens United, Kent Greenfield recently published an opinion piece in The Washington Post (HT: Gordon Smith) bemoaning the fact that, as he sees it, “the most prevalent critique of the decision — Corporations are not people! — is simplistic and dangerous.” He notes that even if you dislike the opinion, the costs of stripping corporations of all their rights as constitutional “persons” would be too high. Rather, he suggests focusing on alternative ways to lessen the impact of the decision:
The key flaw of American corporations is that they have become a vehicle for the voices and interests of an exceedingly small managerial and financial elite — the notorious 1 percent. That corporations speak is less a concern than whom they speak for and what they say. The cure for this is more democracy within businesses — more participation in corporate governance by workers, communities, shareholders and consumers. If corporations were themselves more democratic, their participation in the nation’s political debate would be of little concern and might even be beneficial.
I don’t feel any great need to contest either of these claims. I do, however, want to comment on a couple of other statements Kent makes in the piece. Kent notes that the reasoning behind Citizens United was that “the political speech of corporations was as important to the marketplace of ideas as the voices of human citizens.” While I may seem to be nitpicking here, I believe it is important to add: “and there was nothing about corporations qua corporations to alter this conclusion.” The reason I believe it is important to add this element is that, among other things, it calls into question Kent’s later proposition that:
The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.
I would argue that the Court in fact failed to ask at least one of the right questions, which is: Given that there is a great deal of debate about what corporations are (or, perhaps more precisely, how best to conceptualize corporations), which theory of the corporation are you adopting in order to be so confident that there is nothing about corporations that justifies subjecting them to the established First Amendment exception for status-based restrictions on speech? (In the interest of full disclosure, I have discussed this issue with Kent previously and I think I can fairly say that he was willing to grant that there was at least some merit to this point.) I have argued previously (here and here) that there was essentially a silent corporate theory debate raging in Citizens United, and I am currently working on a project reviewing the key precedents leading up to Citizens United in order to see whether a similar debate can be found in those opinions. Given that it is likely the Court will continue to be confronted with cases concerning the constitutional rights of corporations, I believe the justices will eventually have to affirmatively adopt a particular theory of the corporation to justify their conclusions or else begin to lose credibility for failing to do so. Stay tuned.