Citizens United, Corporate Personhood, and Corporate Power: The Tension between Constitutional Law and Corporate Law

In Citizens United v. Federal Election Commission, the Supreme Court invalidated strict federal campaign finance laws and upheld the First Amendment right of corporations to use general treasury funds to support or oppose candidates in political elections. Shortly after the case was decided, a grassroots popular movement began calling for an amendment to the Constitution to establish that money is not speech and that human beings, not corporations, are the only “persons” entitled to constitutional rights. The concept of corporate personhood entered the national debate, causing many average Americans to question the legitimacy of corporations’ legal personhood status. Federal and state lawmakers have introduced several bills proposing a constitutional amendment to abolish corporate personhood, and hundreds of cities nationwide have passed municipal resolutions supporting such an amendment. Progressive groups that oppose corporate influence in politics disagree on whether the push for a constitutional amendment is a good idea. This article identifies several problems with the amendment strategy and suggests that the focus on personhood is misplaced. Legal history shows that the personhood label has long been arbitrarily applied in constitutional law cases, and, as a practical matter, personhood is largely indeterminate and sometimes irrelevant. More significantly, corporate personhood and power do not find their origin exclusively in constitutional law, but in long-standing corporate law doctrines and deeply entrenched norms. An attempt to curb corporate power in the political realm through a constitutional amendment does not address the systemic features of corporate law that allow corporate entities to amass great economic and political power. To ignore the tensions that corporate law raises in this regard is to miss the deeper source of corporate ascendance in the modern world.