Connecticut Law Review Volume 44 – Issue 3

Citizens United and the Ineluctable Question of Corporate Citizenship

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 over just 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 hand— citizenship. 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 of protection 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 for pursuing 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.

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