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The University of Chicago Business Law Review

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275

Abstract

The role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make? These are vitally important questions that bear on how to deal with the pressing challenges of social media, money in politics, polarization, autocratic threats, and the influence of consolidated capital on governmental and democratic decision-making.

Most conversations about the role of corporations in politics, however, assume a definition of “political.” This key term is commonly taken for granted or simply ignored—often standing in for a vaguely defined concept of politicians, regulatory agencies, lobbyists, and the money and information flows between them. The idea of the “political” is under significant dispute, and its meanings have shifted dramatically, particularly over the last four decades.

This essay lays out an abbreviated genealogy of the “political” and the role of corporations in its development. Corporations have played an outsized role in shaping the boundaries and content of what is understood to be “political” both within multiple areas of law and in American culture more broadly, largely in ways that have limited market-regulating or redistributional governmental action.

This essay also explains that competing definitions of the “political” have led to fundamental contradictions in constitutional law. The term serves as a, if not the, dispositive concept in a range of doctrines. In takings law, for example, the “political” designates the sphere of appropriate governmental action. But the major questions doctrine operates on a near opposite definition: the “political” is the space of impermissible regulatory action. And, surprisingly, First Amendment law employs both concepts.

Recent political and ideological reconfigurations are putting new and different pressures on the “political.” The influence of the business community and libertarianism have begun to wane as polarization has become more intense. The growing clash between identitarian populism—by which I mean the view that law should protect and advance a single cultural identity to the exclusion of other identities, other values, or pluralism—and previously-dominant libertarianism within the Republican coalition is likewise transforming cultural ideas of the political and its normative valance. The essay concludes by asking what that transformation may mean for the role of corporations in politics—and in shaping the boundaries of the “political” itself.

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