The Constitution, Citizenship, and Corporations – A Critical Look at Citizens United v. FEC

Abstract:     
“Associations of citizens” is a phrase the US Supreme Court used in Citizens United v. Federal Election Commission (2010) to refer to corporations. This notion was, apparently, an important element in shaping the Supreme Court’s judgment that permitted corporations to participate in the democratic process through campaign funding. Presumably, the “citizens” the court had in mind are the shareholders of corporations. Treating corporations as citizens in the collective, the Supreme Court upheld their political rights, and there is evidence of disquiet with the decision in Citizens United.

This paper examines the Supreme Court’s characterization of corporations as associations of citizens and granting them “citizenship” rights. These have serious constitutional implications. The idea that corporations are groupings of citizens can be traced to the 19th century and in this paper, I question how far this conception is relevant to modern business corporations with their features such as centralized power structures, relative shareholder passivity, and widespread concerns about corporate power and influence. The characteristics of contemporary corporations leave little room for treating them as “associations of citizens.” My paper points out the need for greater clarity and realism in our understanding of corporations, particularly in the context of constitutional law. This can facilitate the development of more nuanced approaches to deal with the corporate phenomenon.

Number of Pages in PDF File: 51

Keywords: Corporations, business corporations, constitution, citizenship, citizens united, political rights, corporate law, executive pay, race to the bottom, director primacy, managerial capitalism

JEL Classification: B10, B15, B20, B25, B31, K00, K10, K20, K22

working papers series