Citizens United, Shareholder Rights, and Free Speech: Restoring the Primacy of Politics to the First Amendment, Part I
Filed Under: In the News
This article analyzes an underappreciated and oft-overlooked method of campaign finance regulation: the use of reporting and disclosure requirements. Although disclosure has long been overshadowed by more prominent forms of campaign finance regulation, disclosure requirements have recently begun to receive new attention as the Supreme Court has signaled an increasingly skeptical attitude toward direct restrictions on the use of campaign funds. This Article demonstrates that both sides of the campaign finance debate have failed to recognize the full range of possible disclosure schemes, and it argues that a particular set of disclosure requirements can have a much more dramatic effect on the legislative process than has previously been recognized. Applying these insights, the Article shows that a carefully crafted disclosure scheme can offer an effective solution to the problem of quid pro quo corruption (i.e., political bribery) and can overcome serious constitutional concerns about retaliation against those who support unpopular views, while at the same time providing public officials with more detailed information about the needs and preferences of the citizens they represent.
Congress will consider legislative proposals related to the Supreme Court’s Jan. 21 decision in Citizens United v. Federal Election Commission at three hearings this week. The Center for Competitive Politics (CCP) has prepared a policy primer on these issues, and two CCP officials will testify at tomorrow’s Senate panel to discuss proposed campaign finance regulations.
CCP vice president and co-founder Steve Hoersting and CCP board member Allison Hayward, a professor of law at George Mason University, will testify at Tuesday’s Senate Rules & Administration Committee hearing. Congressional leaders and President Obama have suggested further restricting supposedly foreign spending and restricting business corporation political spending.
“President Obama and congressional leaders should wait for any potential issues from Citizens United to emerge instead of rashly spreading baseless, inflammatory assertions about corporate control of our republic,” said Hayward, who authored a Citizens United brief on behalf of campaign finance scholars examining the legislative history of the corporate and union expenditure provisions. “Judicial review of any burdens on independent spending will demand evidence of a compelling governmental interest. It is doubtful that interest could be established to a court’s satisfaction if Congress haphazardly cobbles together legislation with no real world rationale beyond hypotheticals.”