Nees on Citizens United

Anne Tucker Nees has posted Politicizing Corporations: A Corporate Law Analysis of Corporate Personhood and First Amendment Rights after Citizens United on SSRN with the following abstract:

From derivative suits to the derivative speech rights recognized in Citizens United, the watershed 2010 Supreme Court opinion overturning regulations on corporate political speech in the form of independent expenditures, our law takes inconsistent stances on how corporations speak, on whose behalf, and for whose benefit. The question of corporate personhood is central to the determination of corporations’ claim to First Amendment rights. The evolution of corporate personhood culminating in the Citizens United opinion holding that the First Amendment recognizes no distinctions between individual and corporate speakers can be juxtaposed to the development of corporate law in areas such as derivative suits, the proxy process, and SEC regulations which recognize the complexity of corporate speech due to its various stakeholders. Additionally, an analysis of corporate law leads to the conclusion that when corporations speak, it is speech of an economic, not a political nature due to corporations’ singular fidelity to profit maximization. Citizens United leaves unexamined questions such as how economic speech should be treated in the marketplace of political speech. From a corporate law perspective, Citizens United leaves shareholders, particularly those of mutual funds, without meaningful control over how their investments are utilized in the political arena, placing such investors in the unhappy position of potentially choosing between political integrity and economic gain. Further blurring the lines between economic and political interests for corporations and shareholders undermines both the First Amendment principals supposedly advanced in Citizens United and tenants of corporate law that, like our political system, seek to appropriately balance the competing and distinct interests of the corporation as an entity, its management (directors and officers), and its shareholders.

ECC