Saturday, August 21, 2010
As Rob points out, the Citizens United decision continues to provoke controversies. We sorely need a clearer and more nuanced consideration of the meaning of Court's extension of the definition of corporate personhood to include rights of free speech. Publically traded corporations, like Target, are not natural persons. They are persons only as legal fictions. And, the shareholders of publically traded corporations are, often, likewise not persons, but other legal fictions or collective entitites. Typically, they fall into two categories that we might call Wall Street investors and Main Street business owners. The Wall Street investors (which includes institutional investors) buy equities as investment insturments for short term gain. They don't have much concern for the underlying business, beyond the quarterly yield and profit statement. The bulk of shares of most publically traded corporations are held for short periods by Wall Street investors. Main Streeters care about the long-term health and reputation of the business, often because they are involved with its operation in some way. But, they represent a minority of shares traded.
Citizens United appears to give corporate boards fiduciary duties with respect to the speech rights of both kinds of individual investors. Given the short-term concerns of Wall Street and the longer term concerns of Main Street, there will most like be conflicts between the two classes of investors over how funds should be allocated in furthering political speech. But this raises a number of issues that are unanswered. For example: how, if at all, can corporate boards be held responsible to both types of investors? What are the Board's fiduciary duties toward minority speech rights? Which type of investor's speech interest should take priority, and what kind of oversight a court can maintain over the board without running afoul of first amendment.
The "conscience" (to use Rob's analogy) of Wall Streeters would seem to be deformed by the short-term interests of institutional investors. Any decent underrstanding of conscience would seem to include a more robust moral sense than making a quick buck! While the Main Streeters would seem to have greater concern for long term well-being, they typicall hold only a minority of shares.
Moreover, given the business judgment rule and demand pleading requirements (at least in Delaware), it seems nearly impossible to maintain an action for breach of fiduciary duty once the board has issued a nonreviewable proffered interest for the corporation in issuing the expendature. So, Boards will be fairly free to spend corporate funds to back politicians of their own, private concern with little accountability to the shareholders beyond the need to proffer an attenuated "profit motive."
All of these issues stem from the extension of the legal fiction corporate personhood into the realm of political speech. Corporations, not being ontological persons, have no inherent rights. They are creatures of the states in which they are chartered by the authority of the executive, typically acting through the secretary of state. The Supreme Court seems to seek to federalize the ability to shape the rights that states give to the entities they create.
Catholics have traditionally affirmed that the physicality of real human persons is foundational for their dignity. Philosophical systems that have sought to gound the dignity of the person apart from the physical embodiment of actual beings run two risks--first, they devalue the dimensions to human existence that cannot be communicated conceptually--thus conscience can be viewed as a collective discourse. They mystery of persons revealed in Christ escapes such discourse. The mystery of the person is not disclosed in discourse, but in the mystery of the Eurchaistic presence and the mystery of the Church as communio. Second, by devaluing the physical, the body becomes an object of incovenience and subject to scorn when it becomes an interference with one's lifestyle. Life as a physical reality loses meaning.
I look on Citizens United as a dangerous development for the American democracy, both because it continues the process of aggregating power in an interelated complex of corporation and state interests that are insulated from the will of the people, and also (relatedly) because it further distorts and confounds the conception of the human person as the physical bearer of rights who must be served by the law, if the rule of law is to be admirable.