A Contractarian Critique of Citizens United

In Citizens United v. Federal Election Commission, a 5-4 majority overturned a congressional enactment limiting corporate electioneering. Decided in 2010, the Citizens United opinion has already been harshly criticized by a broad spectrum of people, ranging from President Obama to Ben & Jerry. A group of senators has even called for a constitutional amendment to undo the results of that decision. In this article, I criticize the majority opinion in Citizens United for ignoring the prevailing contractarian view of a corporation. In so doing, the majority arrived at the false conclusion that corporations should be entitled to the constitutional protections of individual citizens. This article presents a new way of using the contractarian paradigm as a defense of corporation regulation. Under the contractarian paradigm, corporations are understood as a nexus of contracts among the corporation’s constituents. The contractarians typically draw the normative conclusion that since parties freely enter into those contracts, parties should be at liberty to set whatever terms they like without government regulation. My article argues for the opposite normative conclusion, that exactly because the contracts at stake are often not in fact bargained for freely or fairly, as the theoreticians argue, that there is need for government regulation to make sure that the contracting process and the resulting bargains are fair. I use contract law jurisprudence to show that defenses to contract enforcement ex post, can justify government regulation of corporations ex ante. Further, I develop this idea into a general analytical framework for assessing whether and when regulation of a corporation is both constitutional and prudential. I then illustrate how to use this paradigm by applying it to the Citizens United decision and to proposed regulatory responses to that decision. This reconceived contractarian paradigm should empower both judicial and legislative bodies to appropriately regulate and even limit the activities of corporations. It is my hope that this article might encourage jurists and legislators to do just that