The Corporation in the Marketplace of Ideas: The Law and Economics of Corporate Political Speech

In 2010, the Supreme Court decided Citizens United v. FEC, and raised the ire of commentators around the country. The President even criticized the ruling during the State of the Union Address. But corporate political speech has existed at various levels throughout history, and the debate is often clouded by complex balancing tests and convoluted reasoning. In this dissertation, the methodology of law and economics is utilized to analyze the value of corporate political speech to the marketplace of ideas. Chapter 1 introduces Tracing the history of Supreme Court decisions dealing with corporate political speech, variables can be isolated that deal with each component of speech in the marketplace, the speech itself (the product), the speaker (the producer), and the audience (the consumers). The stated goal of the marketplace of ideas is to allow citizens to process information and arrive at efficient and true conclusions. Any regulation of corporate political speech must determine if the regulation prevents a high probability of harm in order to justify the loss of speech that may be valuable to the marketplace. Extending a formula first created by Judge Richard Posner, and accounting for new insights to decision making offered by studies in behavioral law and economics, each variable can be analyzed to determine when suppression is justified, and what actual factors should be considered by lawmakers and judges. The conclusion is that the high legal error costs associated with attempting to suppress only that speech which can consistently be deemed to be harmful make most efforts at restricting corporate political speech problematic. In all three instances regulations are likely to be over-inclusive and result in a chilling effect which will impact core political speech at the heart of the protections of the First Amendment