The Supreme Court as Prometheus: Breathing Life into the Corporate Supercitizen

Source: Robert Sprague and Mary Ellen Wells, American Business Law Journal, Volume 49, Issue 3, September 2012
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In 1612, England’s Chief Justice Coke declared that corporations have no souls. Nearly four hundred years later, in Citizens United v. Federal Election Commission (FEC), Justice Kennedy declared that corporations are disadvantaged persons because the government had intruded upon their freedom of speech. This article examines the legal status of the corporation in light of the U.S. Supreme Court’s decision in Citizens United that corporations have political free speech rights equivalent to natural persons. The Citizens United majority portrayed a misleading image of corporations. It is true most corporations are owned by small groups of individuals, managed by their owners, and limited in size and revenues. But what the Citizens United majority conveniently ignored is one particular attribute which has existed for at least one hundred years: that exceptionally large corporations, controlled by a handful of individuals, have amassed great quantities of wealth and power, which dwarf the resources of the individual electorate, as well as the corporations’ own minority shareholders, ultimately diluting individuals’ political voice.

To say that Citizens United’s holding is controversial is an understatement. While much has been said about Citizens United, particularly relating to its impact on campaign finance, this article focuses on the role of the corporation in American society in light of Citizens United’s determination that a corporation is a “person” with unfettered political speech rights. From its inception, the corporation–a legal fiction–has been recognized as a legal entity separate from its owners. And it has always been grantedsome of the same legal rights as those held by natural persons: it can own and sell property; it can sue or be sued. But corporations also possess supernatural powers, particularly perpetual existence…

.. In Part I, we explore the history and development of corporate political speech restrictions, both from statutory and Supreme Court jurisprudence perspectives. Part II examines the role of the corporation in American society at the time of founding to shed light on the question of whether the First Amendment was intended to fully protect corporate political speech. In Part III, we trace the evolution of the corporation in nineteenth-century America from a special- to general-purpose entity, along with associated constitutional developments. ….

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