Author(s)Schotland, Roy A.
Business Organizations Law
Law and Politics
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AbstractFirst, a bouquet for the illuminating facts presented by Professors Wert, Gaddie, and Bullock. They make dramatically clear how minuscule independent spending by corporate PACs has been (that is, those PACs’ direct spending as distinct from support by those PACs or their corporate sponsors for spending by intermediaries like the Chamber of Commerce). Their showing is borne out by experience this year: corporate support for campaigns is almost all hidden, flowing through intermediaries, which is why getting effective disclosure is more important than ever, as the Court clearly recognizes (We probably owe much to Justice Kennedy for the fact that the opinion treats disclosure as it does.). Next, applause for James Gardner’s interesting recasting of the Court’s approach. As he says, “so much has been written” in “severe criticism” of the decision, that we should turn to views that are not mere “piling on.” But we cannot ignore the extent to which “the decision has been unfairly caricatured and may not have the direct consequences many predict.” Those words opened an article in the Columbia Law School Magazine, presenting the views of “more than a few faculty members,” including Professor Briffault. The Columbia professors made clear that “the central holding . . . was neither as revolutionary nor as consequential as some critics claimed . . . . The floodgates . . . [had been] already open.” As an election law professor at another law school wrote to me, the reaction to Citizens United has been “disproportionately rabid[,] . . . over-overwrought.” None of that denies at all that the decision may well matter mightily. Independent spending by corporations and unions, although it had been extensive and legally so, expanded (in 2010, hugely) because, as election-law authority Richard Hasen put it orally: “it makes ‘the ask’ so much easier.” I entirely join in deploring the majority opinion; but I believe we must correct the “disproportionately rabid” reaction. Consider, as an example of the sky-is-falling spin, two articles by Ronald Dworkin, a very (and rightly) highly regarded scholar: The “Devastating” Decision and The Decision That Threatens Democracy. Dworkin ignores this: more than half our fifty States allow “spending of the sort endorsed in [this] decision [and] political scientists have not been able to identify differences in corporate influence in the two sets of states.” Are the majority of our States not democracies? “There is absolutely no distinction between those states that have bans on corporate electioneering and those that do not,” says Columbia Professor Nathaniel Persily (an election law authority). Praise is owed to scholars who (unlike those unfairly attacking the new decision by ignoring the majority of our States) have been working on what we may learn from the different States’ different laws. Last, now that we have the decision, the crucial next step is obvious: to enact the newly, acutely needed updating of federal and state disclosure requirements. The majority’s opinion makes unarguably clear that disclosure of funding sources will, even in the new deregulated regime, continue to be constitutional. And given the majority’s approach (not merely the Court’s result on this case’s hard-to-escape facts), assuring effective disclosure is more important than ever. Disclosure’s four key values have never been more clearly at stake: to provide voters with information that goes beyond the candidates’ words and past performance and that may in itself be a significant signal of future performance; to hold candidates accountable for the direct contributions they accept and to have the candidates’ explanation of any indirect, independent support; to hold accountable the deep-pocket independent supporters (wealthy individuals, corporations and unions, and special interest organizations) who use their success in the often opaque economic marketplace to pursue success in the political marketplace, which must remain open to remain democratic; and to hold corporations, unions, and other organizations accountable to shareholders and members for the spending of their money on political campaigns.