Citizens United is about speech AND corporations

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.

Comments

[Dto]

While corporations have zero obligation to report - to regulators - how and where they are spending corporate resources in the pursuit of exercising their court affirmed 1st Amendment rights, they might have an obligation - at least theoretically - to justify such expenditures to their shareholders.

On one hand corporate dollars spent on political activism regarding an issue or candidate is an investment - a la marketing - to persuade consumers/voters toward a desired end that would generate beneficial consequences for the corporate enterprise. On the other hand, political spending is a tantamount to placing bets at the electoral roulette table and betting on a specific number, or placing preseason bets on the Cincinnati Bangels to win the superbowl (that's generally not a good bet...but could be getting better!). The GOP primary season is highlighting - like never before - the fact that electoral winds are wildly unpredictable and just as difficult to harness. Within this context, corporate spending on PACs looks far less like an investment and much more like the attempts of corporate officers and boards to exploit corporate resources in the pursuit of their personal political objectives that are next to impossible to justify to a the broader class of shareholders, many or which do not share their particular political persuasion or candidiate.

Given the reluctance of courts to hold corporate elites accountable, I have little faith that such questions will make it far beyond law school hypotheticals. There's been a flood of media about PACs receiving and spending vast sums from corporate donors. However, I think the time is ripe for reporting on the legal mechanics of how corporations are deciding to spend resources in the political sphere and how these decisions are accounted for - in the strict GAP sense - and communicated to shareholders.

Corporations are citizens, as the courts have affirmed, but they are not citizens like you and me. They are citizens with fiduciary duties and an obligation to maximize profitability...