After Citizens United: Extending the Liberal Revolution to Corporations

42 Pages Posted: 21 Aug 2015  

Daniel J.H. Greenwood

Hofstra University College of Law

Date Written: August 19, 2015

Abstract

This Article proposes several routes to reverse Citizens United, the Supreme Court case holding that corporate campaign spending is “speech” protected by the First Amendment.

The core problem of Citizens United is that corporations are illegitimate participants in our politics. Corporate law requires corporate officers to pursue the corporate interest. They are thus disqualified from considering the central political questions of a democratic capitalist country: defining the rules of the market (which define corporate interests) and balancing profit against other, more important, values. The high road to fixing Citizens United is a constitutional amendment to extend the fundamental insights of the Eighteenth Century liberal revolutions to the corporate sector: the Constitution should protect us from corporate officers, not the other way around.

But we can also reform Citizens United by statute. Citizens United is based on a conceptual error: Corporate "speech" is an issue of corporate governance, not the First Amendment. Even if we entirely banned corporate electioneering and lobbying, every corporate employee, investor and customer would remain entirely free to speak, spend and unite to promote political positions. Instead, the issue is corporate governance – for whom corporate officials work and the limits on the authority they are given to use money that is not their own.

No constitutional amendment is necessary. Congress or even a single state could require a corporation which opts to electioneer to do so in accord with our constitutional values of free debate and democratic elections.

Keywords: Corporate constitutional rights, speech, corporate governance, corporate electioneering, Citizens United, Buckley v. Valeo, democracy, money in politics

JEL Classification: K2, K22

Suggested Citation

Greenwood, Daniel J.H., After Citizens United: Extending the Liberal Revolution to Corporations (August 19, 2015). Hofstra Univ. Legal Studies Research Paper No. 2015-11. Available at SSRN: https://ssrn.com/abstract=2647478 or http://dx.doi.org/10.2139/ssrn.2647478

Daniel J.H. Greenwood (Contact Author)

Hofstra University College of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-7013 (Phone)

HOME PAGE: http://law.hofstra.edu/greenwood

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