The Supreme Court’s decision in Citizens United v. FEC eliminates restrictions on the ability of corporations to make independent expenditures for speech that is electioneering in nature. Crucial in the opinions of both the majority and the dissent in the case is whether the First Amendment’s freedom of speech protection should be applied equally to corporations as it is to natural persons. On this topic, the majority concludes that “the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.” (558 U.S. at 31) On the contrary, the dissenting opinion quotes prior Court decisions in concluding that “the special characteristics of the corporate structure require particularly careful regulation.” (558 U.S. at 2) The special characteristics of corporations that the dissenting opinion lists in support of this conclusion include: limited liability; perpetual life; separation of ownership and control; and favorable treatment of the accumulation and distribution of assets (558 U.S. at 75, among others). In this paper, we highlight an additional characteristic, rooted in economic theory, that we believe adds to the distinction between persons and for-profit corporations. Specifically, we argue that individuals strive to maximize utility and for-profit corporations strive to maximize wealth and that this fundamental distinction and its consequences should have been considered by the Court.
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