The Public Choice Problem in Corporate Law: Corporate Social Responsibility After Citizens United
The Supreme Court recently held in Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did little to inform the Court’s thinking in Citizens United, this Article argues that the holding in Citizens United requires us to rethink corporate theory. The shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy in corporate governance, mainstream corporate theorists have long argued, because we can rely on external regulation to curb or cure the excesses that such a framework will predictably visit upon non‐shareholding stakeholders, such as workers, consumers, and communities. Citizens United removes this lynchpin from canonical justifications for exclusive shareholder orientation in firm governance. This Article argues that if we cannot as a matter of constitutional law keep corporations out of our democracy, then we must as a matter of corporate law have more democracy in our corporations. After Citizens United, we must begin to restructure corporate law to require boards of directors to actively attend to the interests of multiple stakeholders at the level of firm governance.