Delaware Chief Justice: Citizens United On A Collision Course With Conservative Corporate Legal Theory

Leo F. Strimaxresdefaultne, Jr., the Chief Justice of the Delaware Supreme Court and well known corporate legal expert, has a piece on Citizens United in the latest Cornell Law Review (co-authored with Nicholas Walter). His conclusion: Citizens United is on a collision course with conservative legal theory of corporate law.

The full article is worth a read but here’s a quick summary:

  1. Under Citizens United “the for-profit corporation is a citizen like any other.” Justice Strine does not buy the argument that Citizens United has nothing to do with treating corporations as people. Rather, Citizens United is precisely about treating corporations as a “distinct person” with “a constitutional right” equivalent to people:

Under Citizens United, corporations have a constitutional right to spend unlimited amounts of corporate funds to influence the outcome of elections by expressly advocating the election or defeat of particular political candidates. This right is not dependent on the corporation securing from its individual shareholders their specific assent to having corporate funds used in this manner. Rather, the corporation itself has a constitutional right to speak [SIC] in this manner as a distinct “person,” and its managers are the ones who, under traditional principles of corporate law, make spending decisions.

Justice Strine maintains that unlimited corporate spending under Citizens United is at war with conservative corporate legal theory and, indeed, is more consistent with liberal views of corporate “citizens.”

  1. The Citizens United majority made as many erroneous and naïve assumptions about corporate law as it did about democracy, money and power. For example, Citizens United assumes a “shareholder democracy” that doesn’t exist, according to Justice Strine. Indeed, conservative corporate law theory “is founded … on the premise that stockholders are poorly positioned to monitor corporate managers even for their fidelity to a profit-maximizing goal… much less to influence a particular corporation’s approach to political spending.”
  1. Not only do human shareholders have no influence on corporate political spending decisions, there are no human beings to ask even if a corporate CEO were inclined to do so. “[M]ost of the stock of the wealthiest corporations [ie, those with the most influence after Citizens United] is not owned directly by human beings…. Citizens United took little account of this reality….”
  1. Justice Strine raises the provocative question of whether Citizens United may render federal retirement laws unconstitutional “because it, as a matter of effective mandate, forces Americans to turn over their wealth to institutions that are permitted to use it for expressive purposes that they do not support.”
  1. Citizens United undermines the premise of conservative corporate legal theory that the corporation should focus on profit maximization, not “social” goals. This premise assumes that both social goals and remedies to consequences of corporate disregard of social goals or costs will come from regulatory law and the democratic process. Under this approach, “corporations were appropriately limited in their conduct by the governments that granted the important concessions that come with the corporate form. . ..  Now, “Citizens United puts great stress on this model” because such a model “is grounded precisely on the reality that for-profit corporations are distinctly different from the flesh-and-blood humans whose equity capital they ultimately control.”

These flesh-and-blood humans often have diverse concerns—relatives with medical conditions, a love for the environment, beliefs about helping the poor, views about social issues like abortion or national security- that lead them to vote for political candidates for reasons other than the prospect that the candidate will vote for the policies most likely to increase their household wealth.

After Citizens United, unlimited corporate spending drives “election of candidates supportive of lax regulation” and overwhelms the “flesh-and-blood humans” who are the critical “check and balance” of a sole corporate focus on profit-maximization.

  1. Citizens United means the end of conservative corporate legal theory by eliminating the possibility of reconciling the profit-maximization mandate of the corporation with a desirable society that may enact laws to further social ends other than profit-maximization. In effect, “a creation of human legislators – the for-profit corporation – may become a ruthless Leviathan that is a danger to the society that gave it life.”

Here’s the entire article: Leo E. Strine, Jr. & Nicholas Walter, Conservative Collision Course? The Tension Between Conservative Corporate Law Theory And Citizens United, 100 Cornell L. Rev. 335, 340 (2015) 

About Jeff Clements

Jeff serves as President of American Promise. He has practiced law for three decades in public service and private practice, and is the author of Corporations Are Not People: Reclaiming Democracy From Big Money & Global Corporations. He is also the founder of Whaleback Partners LLC, which provides sustainable financing to businesses in the local agriculture economy. Previously, Jeff has been a partner in a major Boston law firm and served as Assistant Attorney General and Chief of the public law enforcement bureau in the Attorney General’s Office in Massachusetts. Jeff has helped to start and been a board member of many non-profit organizations and businesses. Today, in addition to the board of American Promise, he serves on the vestry of Trinity Episcopal Church in Concord, Massachusetts. Twitter: @ClementsJeff
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