Citizens United and the Ineluctable Question of Corporate Citizenship

Abstract

As a result of the Supreme Court's decision in Citizens United, corporations and individuals now enjoy the same rights to spend money on advertisements supporting or opposing candidates for office. Those concerned about the role of money in politics have much to decry about the decision. But the threat to democracy posed by allowing wealthy corporations to function as political speakers arises under the same regime that allows wealthy individuals to do so. If we are not prepared to limit individuals' expenditures on political speech, we will have to find a way to distinguish individuals' and corporations 'free speech rights. The prevailing strategy-marshaled in Justice Stevens' dissent and taken up by the decision's critics-argues that corporations are not persons; therefore they are not entitled to the constitutional rights that persons enjoy. Yet this strategy is bound to fail because there is no consensus overjust what it takes to be a person, let alone whether corporations would qualify. The effort to find a compelling distinction between the free speech rights of individuals and corporations needs a new foundation, which this Article seeks to provide. To that end, the Article focuses not on personhood, but instead on something far more relevant to the matter at handcitizenship. In particular, the Article advances a novel account of citizenship, which it calls normative citizenship. Normative citizens are formal citizens who are expected to participate in the joint project of the nation-state. The Article contends that it is only normative citizens who need robust political free speech rights. Because corporations do not count as normative citizens, corporate political speech need not receive the same level ofprotection as the political speech of normative citizens. While enhanced clarity on the notion of citizenship cannot itself undo the Citizens United decision, there are important reasons forpursuing this work now. First, a clearer understanding of the constitutional status of the corporation could lend support to the movement for an amendment overturning the Citizens United decision. Second, the account advanced here could serve to undermine assertions of other corporate constitutional rights. Finally, this account can forestall rhetoric about the "good corporate citizen, " which may have unwittingly helped to legitimate a conception of the corporation as a bearer of strong constitutional rights-a conception that is inaccurate and problematic, for the reasons advanced here.

Corporate Politics in the Public Sphere: Corporate Citizenspeak in a Mass Media Policy Contest

“…In resurrecting the metaphor of CC to be useful for understanding the political role of corporations, the aspects of the metaphor that are not applicable require further theorization. There are normative accounts of citizenship that are not applicable to corporations (e.g., jury duty, voting, military service) and there are aspects of corporations that allow us to question their proficiency in addressing the common good (e.g., limited liability, separation of ownership and control, lack of conscience; Sepinwall, 2012). Rather than presuming good CC, we can further problematize the metaphor to explain how corporate activities not only reflect but also effect change in relations between corporations, civil society, and the state.…”

Opinions: Business History and Anthropology

“…The stakes are great. The Citizens United case, for example, might be considered a paradigmatic result of a "just-so" reading of the idea of business firms as legal persons and the possibilities of corporate citizenship (Sepinwall 2012). On a close analysis, however, the case reveals significant theoretical questions about how we conceive of the social construction of business firms and the legal rules that govern and constrain them (Orts 2013: 239-50).…”

Corporate Dystopia

“…There are two standard arguments for the permissibility of corporate political activities in the business ethics and business and society literature. Roughly, the first argument holds that corporations have a right to free speech (Ostas, 2007; Sepinwall, 2012; Stark, 2010; Sullivan, 2010). And, according to the second argument, corporations are citizens and as such are permitted—and perhaps not only permitted but also required—to be active participants in the political process because they can contribute to social welfare (Crane, Matten, & Moon, 2008; Logsdon & Wood, 2002; Matten & Crane, 2005; Vogel, 2010).…”

“…The First Amendment rights of business firms ensure protection, for example, through laws that recognize corporations’ “conscience-based” authority to refuse to provide certain pregnancy termination or end-of-life treatments. The federal health care reform bill signed in March 2010 makes it clear that Federal laws that protect conscience apply to health care organizations that are unwilling to provide, pay for, or refer for abortions (Sepinwall, 2012).…”

“…Recently, during the health care reform debates, insurance companies and HMOs heavily lobbied the government to recognize the conscience-based rights of corporations to refuse to provide abortions or refer their patients to a facility that did offer abortion services (Sepinwall, 2012). But corporations lack a conscience; they are merely artificial entities.…”