Shareholder Lock-in and the Corporate Soul: Implications for the First Amendment
Written By: Daniel B. Listwa
What would a post-Citizens United legal regime look like? With reform efforts gaining steam in Congress and the White House, this is becoming an increasingly relevant question. And although the last ten years have produced a mountain of books and articles to guide these projects, certain critical questions remain unexplored. One of these questions is whether corporations should be treated as unique under the First Amendment and thus subject to their own particularized regulations or whether other business entities should be treated in a like manner.
This Article explores that question, offering a novel theory for distinguishing corporations from other business organizations under the First Amendment by looking to a single characteristic: “liquidation protection.” Liquidation protection is a key but underappreciated feature of corporations that prevents a shareholder from dissociating from the organization at will. As this Article explains, that shareholders (or their equivalents) are “locked into” the organization distinguishes certain types of business entities, including corporations, from other entities that do not have this feature, such as general partnerships, and provides a conceptually coherent means of defining the scope of the First Amendment and related regulatory regimes.