47:3 “A Corporation Has No Soul”—Modern Corporations, Corporate Governance, and Involvement in the Political Process

Article

Abstract

The underlying premise of Citizens United v. FEC—that the free speech rights of “associations” of individuals who have organized as corporations must be respected as much as the rights of the individuals themselves—misunderstands the modern structure of the corporation and the nature of corporate decision making in the modern era. Unlike the businesses called “corporations” that were in existence at the time the First Amendment was adopted, modern for-profit corporations do not produce decisions that represent the individual “owners” of those businesses, or coincide with the interests of the public. In designing a legislative response to corporate participation in federal elections, Congress had not attempted to preclude corporations from speaking or participating in the political process. Congress had reached a bipartisan consensus that there was a real danger in allowing direct and unlimited participation in federal elections. Citizens United reached the wrong result when it struck down this legislation, both on the grounds that the modern corporation differs fundamentally from its historical precursors and because public policy does not support allowing such unregulated involvement of corporate “persons” in the political process.