Paper Explores Routes to Reverse Citizens United

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Since the 2010 Citizens United ruling, there has been much controversy over whether it could be improved via constitutional amendment or by statute.

A new paper also explores the subject.

Just by way of background: Citizens United v. Federal Election Commission is a U.S. constitutional law case dealing with the regulation of campaign spending by organizations. The United States Supreme Court held that the First Amendment prohibited the government from restricting independent political expenditures by a nonprofit corporation. The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.

A new paper published last month by Daniel J.H. Greenwood, of Hofstra University is titled, “After Citizens United: Extending the Liberal Revolution to Corporations, and says in part:

The core problem of Citizens United is that corporations are illegitimate participants in our politics. Corporate law requires corporate officers to pursue the corporate interest. They are thus disqualified from considering the central political questions of a democratic capitalist country: defining the rules of the market (which define corporate interests) and balancing profit against other, more important, values. The high road to fixing Citizens United is a constitutional amendment to extend the fundamental insights of the Eighteenth Century liberal revolutions to the corporate sector: the Constitution should protect us from corporate officers, not the other way around.

But we can also reform Citizens United by statute. Citizens United is based on a conceptual error: Corporate “speech” is an issue of corporate governance, not the First Amendment. Even if we entirely banned corporate electioneering and lobbying, every corporate employee, investor and customer would remain entirely free to speak, spend and unite to promote political positions. Instead, the issue is corporate governance – for whom corporate officials work and the limits on the authority they are given to use money that is not their own.

No constitutional amendment is necessary. Congress or even a single state could require a corporation which opts to electioneer to do so in accord with our constitutional values of free debate and democratic elections.

To download the entire 42-page paper, click here.

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