Corporate Identity inCitizens United: Legal Fictions and Anthropological Theory

Abstract

Corporate Identity in Citizens United: Legal Fictions and Anthropological TheoryThe United States Supreme Court's decision in Citizens United v. Federal Election Commission [2010] from the outset has been a contested, highly politicized case, where judicial interpretation affected more than just election finance law; the majority's opinion explicitly intervened in a wider political struggle over personhood and the boundaries of citizenship. This article moves beyond questions of legal doctrine to highlight the social-theoretical-political contexts of the decision and its consequences for anthropological understanding of American citizenship. I trace how the majority decision appropriated and reshaped a discourse of identity. In its first formulation in social movements, "identity" was offered as a positive basis for rights and inclusion; however, the Court's appropriation reformulated identity on a negative basis, barring both regulation and recognition of identity-based claims by the State. It also went further than a traditional liberal demarcation of rights by specifically attributing agency and authoritative representation to corporate speech. Drawing on previous theoretical discussions of the corporate form and American citizenship and personhood, this article concludes that Citizens United not only allowed for new corporate power in the political sphere, but actively worked against the flourishing of a more humane and inclusive American citizenship in ways that legal anthropologists may wish to address as a matter of theory as much as politics.

Citizens United, citizens divided:

“…In this respect, Citizens reiterated debates that were already familiar to the court, which ultimately endorsed some precedents and revised or overturned others (discussed below). As noted earlier, among the established ideas carried forward in Citizens were corporate personhood—a long‐standing legal fiction (for ethnographic discussion, see Bashkow ; Coleman ; Sawyer )—and the equivalence of political spending with speech (established by Buckley v. Valeo , in 1976; USSC , 339–40)…”

“…By the time of the 2016 presidential campaign, the influx of corporate funds had made Citizens an icon of the campaign finance issue, with the call for reversal becoming a plank in the Democratic Party Platform . But the ruling has not been reversed, and it continues to inspire the sort of somber reflections on the future of US citizenship expressed in Justice Stevens's dissent (e.g., Bashkow ; Coleman ; Dan‐Cohen ; Ellis ; Gans and Kendall ; Youn ).…”

“…In different ways, it is just as pressing for anthropologists. Anthropologists’ attention to Citizens has focused on the ruling's framing of corporate identity as a challenge to liberal citizenship, as well as evidence of contemporary corporate form—treating these subjects as fertile areas for anthropological theorizing in a critical vein (Bashkow ; Coleman ; Gordon ). As a major decision on the status of corporations in the United States, Citizens also raises questions that can be productively informed by recent anthropological debates about corporations as social bodies with flexible powers and prehensile interests involving diverse stakeholders (Appel ; Ballard and Banks ; Marcus ; Maurer ; Moran, King, and Carlson ; Urban ; Urban and Koh ; Wolf ).…”

“…The legal basis of corporations is well understood by anthropologists concerned with the history and diversity of corporate forms (Brown ; Cochrane , ; Coleman ; Goodenough ; Gordon ; Sawyer ; Vargas‐Cetina , S128; Welker, Partridge, and Hardin , S6). But law is not just in the past, as part of a corporate origin story—it is also in the present and future, since key aspects of citizenship (in the United States and elsewhere) are increasingly cabined within the terms of contracts between states and investors, both foreign and domestic, and other extensions of corporate forms (Avi‐Yonah ; Benson and Kirsch ; Cutler ; Goldhaber ).…”

Rethinking Corporate Agency in Business, Philosophy, and Law

“…Freund 1897;Gierke 1900;Maitland 1905;Deiser 1909;Machen 1911;Laski 1916), and are now making a comeback (e.g. Pollman 2011;Blair 2013;Coleman 2014;Greenfield 2015;Piety 2015;Gindis 2016;Robinson 2016;Greenwood 2017;Kurki and Pietrzykowski 2017) against a backdrop of widespread calls to restrict constitutional rights to human beings (Ripken 2011 were to live in a future broken by climate change and material scarcity, or in a future populated by digital beings that have replaced flesh-and-blood humans. In such a broken or digital future, which no one can be certain will not happen, Mulgan shows that many of the assumptions of contemporary moral theory would no longer hold.…”