The Silent Role of Corporate Theory in the Supreme Court’s Campaign Finance Cases (Part 1?)
I've posted the latest draft of my current project, "The Silent Role of Corporate Theory in the Supreme Court's Campaign Finance Cases," on SSRN (here). I've also just started sending the piece out to law reviews, so interested editors should feel free to contact me directly at email@example.com. Finally, in future posts I may do some "open source article writing" and review some of the particular parts of the paper that might benefit from further feedback. However, no one should feel like they need to wait till then to make comments. Here is the abstract:
In Citizens United v. Federal Election Commission, a 5-4 majority of the Supreme Court held that corporate political speech could not be regulated on the basis of corporate status alone. In support of that conclusion, the majority characterized corporations as mere “associations of citizens.” The dissent, meanwhile, viewed corporations as state-created entities that “differ from natural persons in fundamental ways” and “have been ‘effectively delegated responsibility for ensuring society’s economic welfare.’” I have argued previously that these two competing conceptions of the corporation implicate corporate theory, with the majority adopting an aggregate / contractarian view, and the dissent an artificial entity / concession view. Even if one understands Citizens United to be primarily about listeners’ rights, this stark contrast of competing theories of the corporation is difficult to ignore. At the very least, what the majority and dissent thought about corporate speakers was relevant to the question of whether the campaign finance restrictions challenged in Citizens United should fall within that narrow class of speech restrictions justified on the basis of the speaker’s identity due to “an interest in allowing governmental entities to perform their functions.” Somewhat surprisingly, however, the majority was silent, and the dissent expressly disavowed, any role for corporate theory. I have previously offered some explanations for this apparent inconsistency, and concluded that an active “silent corporate theory debate” was indeed integral to the outcome of Citizens United—despite protestations to the contrary. In this project, I examine the key Supreme Court cases leading up to Citizens United to see whether a similar silent corporate theory debate is evident in those cases. I find that there is indeed such an on-going debate, and proceed to argue that in future cases involving the rights of corporations the justices should make their views regarding the proper theory of the corporation express. This will allow for a more meaningful discussion of the merits of those decisions, and impose an additional layer of intellectual accountability on the jurists.