October 07, 2010

"Confronting the Impact of Citizens United"

Justin Levitt has posted this draft on SSRN (forthcoming, Yale Law & Policy Review). Here is the abstract:

    Perceived corporate power has spurred a recent populist backlash, on both political left and political right. In this atmosphere, the Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, granting corporations the right to spend directly on express political advocacy, has become the target of particularly heated critique.

    This Essay confronts the impact of Citizens United in two respects. Part I first reviews Citizens United's place in the campaign finance constellation. It argues that although the decision was a bold stroke in many ways, its impact on the scope of permissible campaign finance regulation is far less substantial than commonly assumed.

    Even if Citizens United's incremental impact is mild, it nevertheless seems to have the feel of a final straw. The decision has provoked first furor, and then fear, with opponents invoking a broad vision of a dystopian political process overwhelmed by corporations. Yet rarely is the fear of corporate political spending articulated at a level of specificity conducive to assessing, or confronting, the perceived damage. Part II takes up the challenge, parsing the pragmatic concerns at the root of opposition to corporate political spending. It then offers responsive policy proposals - including an approach to protect against monopolization of media channels, an appealingly straightforward disclaimer label to mitigate voter misperception, and a novel application of a recusal obligation to combat the appearance of corruption - all well within the regulatory space undisturbed by Citizens United.

Important and provocative!

Posted by Rick Hasen at October 7, 2010 08:37 AM