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Levitt on Citizens United v. Federal Election Commission

By Lawrence Solum

Justin Levitt (Loyola Law School - Los Angeles) has posted Confronting the Impact of Citizens United (Yale Law & Policy Review, Vol. 29, 2010) on SSRN. Here is the abstract:

A recent backlash against perceived corporate primacy has spurred substantial populism on both political left and political right. 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 primary respects. Part I first reviews Citizens United?s place in the campaign finance constellation. It suggests that although the decision was a bold stroke in many ways, its incremental impact on the scope of permissible campaign finance regulation is ? surprisingly ? far less substantial than commonly assumed.

Nevertheless, however individually weighty, Citizens United seems to have the feel of a final straw. The decision has provoked first furor, and then fear, for the health of the American political process. Part II therefore confronts the source of this fear, carefully parsing the pragmatic concerns at the root of opposition to corporate political spending in an effort to better understand the uproar. The Essay then suggests responsive policy proposals to mitigate these concerns - including a novel form of campaign finance disclosure and a novel recusal obligation. These regulatory proposals, better tailored to the real fears of independent corporate political spending, fall well within the regulatory space undisturbed by Citizens United.

Full post as published by Legal Theory Blog on September 14, 2010 (boomark / email).