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 Clements is co-founder and chair of the board of Free Speech for People, a national non-partisan campaign to overturn Citizens United v. FEC, challenge excessive corporate power, and strengthen American democracy and republican self-government. He co-founded Free Speech For People in 2010, after representing several public interest organizations with a Supreme Court amicus brief in the Citizens United case. Jeff has served as Assistant Attorney General and Chief of the Public Protection Bureau in the Massachusetts Attorney General’s Office. As Bureau Chief, he led more than 100 staff in the enforcement of environmental, healthcare, financial services, civil rights, antitrust and consumer protection laws. In private practice, Jeff has been a partner at Mintz Levin in Boston, and in his own firm. Jeff also has served in leadership capacities on numerous boards, including that of the Portland Water District, a public agency responsible for protecting and delivering safe drinking water and ensuring proper treatment of wastewater for 160,000 people; Friends of Casco Bay, an environmental organization he co-founded with others to protect and enhance stewardship of Maine’s Casco Bay; and The Waldorf School in Lexington, Massachusetts. In 2012, Jeff co-founded Whaleback Partners LLC, which provides cost-effective capital to farmers and businesses engaged in local, sustainable agriculture. Jeff graduated with distinction in History and Government from Colby College in 1984, and magna cum laude from the Cornell Law School in 1988. He lives in Concord, Massachusetts with his wife and three children. Jeff Clements Twitter: @ClementsJeff Email: jclements@freespeechforpeople.org
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