dunnettreader + campaign_finance   16

“Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law” | Election Law Blog
Tony Gaughan has posted this draft on SSRN (forthcoming, Southern California Interdisciplinary Law Journal) . Here is the abstract: Since the 1970s, federal…
elections  campaign_finance  Trump-Russia  social_media  from instapaper
november 2017 by dunnettreader
Joseph Fishkin & Heather Gerken - The Future of the Party and Campaign Finance — A Response to Bob Bauer | Balkinization Sept 2015
The debate between Bob and us centers on a simple question: what happens if we fund the formal parties in the same way we fund the shadow parties (the Super PACs and 501(c)(4) and (c)(6) organizations)? Our worry is that if the formal parties’ financing is identical to that of the shadow parties’, this will gradually transform the formal parties into institutions that look more like the shadow parties—hierarchical, almost entirely beholden to big donors—thus seriously eroding what remains of a reasonably pluralistic party system. Bob’s worry, on the other side, is that if we don’t do something to level the playing field between the formal parties and shadow parties, the formal parties don’t have much of a future in politics.
Pocket  US_politics  parties  campaign_finance  plutocracy  parties-transmission_belts  political_participation  political_culture  from pocket
january 2016 by dunnettreader
Leo E. Strine - A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications :: SSRN - Journal of Corporation Law, 2015, Forthcoming (rev'd March 2015)
Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School -- This article connects the Supreme Court’s decision in Burwell v. Hobby Lobby to the history of “corporate paternalism.” It details the history of employer efforts to restrict the freedom of employees, and legislative attempts to ensure worker freedom. It also highlights the role of employment in healthcare coverage, and situates the Affordable Care Act’s “minimum essential guarantees” in a historical and global context. The article also discusses how Hobby Lobby combines with the Supreme Court’s earlier decisions in Citizens United and National Federation of Independent Business v. Sebelius to constrain the government’s ability to extend the social safety net, and shows how those decisions put pressure on corporate law itself. -- Note: The article was the subject of lectures to the Securities Regulation Institute of Northwestern University School of Law and the American Constitution Society Student Chapter at Harvard Law School. -- PDF File: 76 -- Keywords: Hobby Lobby; corporate law; corporate paternalism -- right on Leo! -- downloaded pdf to Note
article  SSRN  US_constitution  US_legal_system  corporate_law  corporate_citizenship  corporate_governance  shareholders  freedom_of_conscience  SCOTUS  labor  labor_standards  employers  employee_benefits  welfare_economics  welfare_state  health_care  campaign_finance  downloaded 
july 2015 by dunnettreader
Leo E. Strine , Nicholas Walter Originalist or Original: The Difficulties of Reconciling "Citizens United" with Corporate Law History :: SSRN - Notre Dame Law Review, 2015, Forthcoming (rev'd March 2015)
Leo E. Strine Jr., Supreme Court of Delaware; Harvard Law School; Penn Law School -- Nicholas Walter, Wachtell, Lipton, Rosen & Katz -- Citizens United has been the subject of a great deal of commentary, but one important aspect of the decision that has not been explored in detail is the historical basis for Justice Scalia’s claims in his concurring opinion that the majority holding is consistent with originalism. In this article, we engage in a deep inquiry into the historical understanding of the rights of the business corporation as of 1791 and 1868 — two periods relevant to an originalist analysis of the First Amendment. Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate. -- PDF File: 94 -- Keywords: Jurisprudence, constitutional interpretation, original intent, original understanding, originalism, election law, campaign finance reform, corporate personhood, general corporation statutes, political speech, First National Bank of Boston v. Bellotti, Santa Clara County v. Southern Pacific Railroad -- downloaded pdf to Note
article  SSRN  corporate_law  corporate_citizenship  US_constitution  constitutional_law  originalism  free_speech  civil_liberties  legal_history  legal_theory  legal_reasoning  elections  campaign_finance  politics-and-money  downloaded 
july 2015 by dunnettreader
Joseph Fishkin, Heather Gerken - The Party's Over: McCutcheon, Shadow Parties, and the Future of the Party System :: SSRN - Supreme Court Review, Vol. 2015, No. 1, 2015
Joseph Fishkin, University of Texas School of Law -- Heather Gerken, Yale University - Law School -- McCutcheon v Federal Election Commission can only be understood against the deep shifts taking place in American politics. By some measures, party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups” (..) which have taken over a startling array of core party functions. But these “outside groups” are are deeply and durably aligned with one party or the other and run by consummate party insiders. That’s why we call them shadow parties.(..) What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large. Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. (..) They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful – the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites – and largely eliminate their already-diminished role within the party writ large. The shift toward shadow parties thus raises important questions about the future of American politics and who ought to control political parties. -- PDF File: 28 -- downloaded pdf to Note
paper  SSRN  SCOTUS  elections  campaign_finance  parties  partisanship  political_participation  politics-and-money  shadow_parties  business_influence  democracy_deficit 
july 2015 by dunnettreader
David Gans - The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights | Balkinization - June 2015
Cases decided by a single federal district court judge (..) and are very rarely accepted for Supreme Court review. (..) the Supreme Court has complete control over its certiorari (discretionary) docket, and can refuse to hear a case for any reason without setting any judicial precedent for the future. But 3-judge court cases are radically different, as the Supreme Court is required to act on a direct appeal from the decision of a 3-judge court. When such an appeal is filed, the Justices have 3 options—either to summarily affirm, to dismiss the appeal for want of a substantial federal question, or to accept the case for full review. Unlike a denial of a petition for a writ of certiorari, each of these actions sets a precedent for the future. Because the Justices are often wary of setting a precedent without full briefing, direct appeals from 3-judge courts quite often receive full review on the merits. (..) The Supreme Court agreed to review Shelby County despite the absence of a circuit split, producing a landmark ruling gutting a key part of the Voting Rights Act and striking a blow against the power of Congress to protect the right to vote free from racial discrimination. Shelby County is the exception that proves the rule. Virtually all the big Roberts Court cases that have changed the ground rules for our democracy have been direct appeals from 3-judge courts. What this reflects is a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them.
Instapaper  SCOTUS  US_constitution  constitutional_law  judiciary  judicial_review  conservative_legal_challenges  voting  rights-legal  constitutional_regime  Roberts_Court  campaign_finance  partisanship-judiciary  from instapaper
june 2015 by dunnettreader
Elaine Karmack - Jonathan Rauch: Political realism - In praise of old fashioned politics | Brookings Institution - May 2015
Jonathan Rauch's paper “Political realism: How hacks, machines, big money and back-room deals can strengthen American democracy” marks the beginning of a serious effort on behalf of Brookings scholars to open up a conversation challenging the reform assumptions of the past few decades. In the coming months we will be convening social scientists and public intellectuals along with politicians and activists in order to explore a new way of looking at solutions to the polarization of contemporary American politics. Not everyone will agree—with Rauch—or with each other. But we feel the time has come to take on the conventional reform wisdom and begin an intellectual dialogue on why our democracy seems to be failing. Taking a page from international relations where realism assumes conflict among nations; political realism also assumes that conflict is a constant part of the system. According to Rauch realism, “…sees governing as difficult and political peace and stability as treasures never to be taken for granted.” He goes on to argue the virtues of transactional politics and to point out how, in the name of reform, weakening the bulwarks of transactional politics has weakened democracy as a whole. “Where the realist tends to believe that governing is inherently difficult, that politics is inherently transactional and that success is best judged in terms of reaching social accommodation rather than achieving some abstract purpose, the progressive tends to see government as perfectible and politics as a path toward a higher public good.” In practice this means that the political realist advocates things that have been anathema to reformers. -- downloaded pdf to Note
paper  democracy  US_politics  US_government  US_legal_system  good_government  sunshine_laws  transparency  realism-political  IR-realism  reform-political  parties  partisanship  faction  extremism  polarization  conflict  common_good  political_philosophy  political_culture  political_sociology  political_participation  political_science  politics-and-money  campaign_finance  elections  public_sphere  public_policy  downloaded 
may 2015 by dunnettreader
Lucian A. Bebchuk, Robert J. Jackson - Shining Light on Corporate Political Spending - Georgetown Law Journal, Vol. 101, April 2013, pp. 923-967 :: SSRN (last revised August 2014)
Lucian A. Bebchuk - Harvard Law School; National Bureau of Economic Research (NBER); Centre for Economic Policy Research (CEPR) and European Corporate Governance Institute (ECGI) -- Robert J. Jackson Jr. - Columbia Law School --- The SEC is currently considering a rulemaking petition requesting that the SEC develop rules requiring that public companies disclose their spending on politics. The petition, which was submitted by a committee of ten corporate law professors that we co-chaired, has received unprecedented support, including comment letters from nearly half a million individuals. (...)the petition has also attracted opponents, including prominent members of Congress and business organizations.This Article puts forward a comprehensive, empirically grounded case for the rulemaking advocated in the petition. We present (..) evidence indicating that a substantial amount of corporate spending on politics occurs under investors’ radar screens, and that shareholders have significant interest in receiving information about such spending. We argue that disclosure of corporate political spending is necessary to ensure that such spending is consistent with shareholder interests. We discuss the emergence of voluntary disclosure practices in this area and show why voluntary disclosure is not a substitute for SEC rules. We also provide a framework for the SEC’s design of these rules. Finally, we consider and respond to ten objections that have been raised to disclosure rules of this kind. We show that all of the considered objections, both individually and collectively, provide no basis for opposing rules that would require public companies to disclose their spending on politics. -- downloaded pdf to Note
article  SSRN  US_government  administrative_law  administrative_agencies  financial_system  SEC  disclosure  corporate_law  corporate_governance  corporate_finance  corporate_citizenship  campaign_finance  capital_markets  investors  political_participation  lobbying  downloaded  EF-add 
november 2014 by dunnettreader
Richard Briffault - The Uncertain Future of the Corporate Contribution Ban (Valparaiso University Law Review, Forthcoming) July 25, 2014 :: SSRN
Columbia Law School -- Columbia Public Law Research Paper No. 14-405 -- Concern about the role of corporate money has been a longstanding theme in American politics. The first permanent federal campaign finance law – the Tillman Act of 1907 – prohibited federally-chartered corporations from making contributions in any election and prohibited all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened over a century the federal corporate contribution ban is still on the books. Twenty-one states also prohibit corporate contributions to candidates in state elections. SCOTUS sustained the federal corporate contribution ban as recently as 2003 in FEC v. Beaumont, but that decision and the corporate contribution ban today rest on shaky ground. The Roberts Court has demonstrated little respect for either legislated campaign finance restrictions or the Court’s own campaign finance precedents. -- In Citizens United and McCutcheon, the Court emphasized that campaign finance restrictions cannot be justified by the goal of reducing the political power of the wealthy. Although much of the impetus for the corporate contribution ban is public anxiety over corporate wealth and power, the shareholder-protection and anti-circumvention justifications are not triggered by concern about corporate wealth but, rather, reflect other key features of the corporate form – its artificial existence as a legal to achieve ends desired by the individuals who have created it, and the potential for those who control the corporation to exploit shareholders. These two interests work in tandem, with shareholder-protection having greater purchase for multi-shareholder publicly-held entities, and anti-circumvention more relevant for single-shareholder, closely-held or nonprofit corporations. Together, they make the case for the corporate contribution ban for reasons other than the equality-promoting goal that Citizens United and McCutcheon so vehemently rejected. -- another paper beginning to deal with inherent conflict between management and shareholder interests in political spending that puts 2 conservative trends on collision
article  SSRN  SCOTUS  constitutional_law  corporate_law  campaign_finance  elections  corporate_governance  shareholders  shareholder_value  investors  management  principal-agent  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
Leo E. Strine , Nicholas Walter - Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and Citizens United (Cornell Law Review, Forthcoming) - August 1, 2014 :: SSRN
Leo E. Strine Jr. - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School -- Nicholas Walter, Yale University -- Harvard Law School John M. Olin Center Discussion Paper No. 788 -- One important aspect of Citizens United has been overlooked: the tension between the conservative majority’s view of for-profit corporations, and the theory of for-profit corporations embraced by conservative thinkers. This article explores the tension between these conservative schools of thought and shows that Citizens United may unwittingly strengthen the arguments of conservative corporate theory’s principal rival. Citizens United posits that stockholders of for-profit corporations can constrain corporate political spending and that corporations can legitimately engage in political spending. Conservative corporate theory is premised on the contrary assumptions that stockholders are poorly-positioned to monitor corporate managers for even their fidelity to a profit maximization principle, and that corporate managers have no legitimate ability to reconcile stockholders’ diverse political views. Because stockholders invest in for-profit corporations for financial gain, and not to express political or moral values, conservative corporate theory argues that corporate managers should focus solely on stockholder wealth maximization and non-stockholder constituencies and society should rely upon government regulation to protect against corporate overreaching. Conservative corporate theory’s recognition that corporations lack legitimacy in this area has been strengthened by market developments that Citizens United slighted: that most humans invest in the equity markets through mutual funds under section 401(k) plans, cannot exit these investments as a practical matter, and lack any rational ability to influence how corporations spend in the political process. -- Keywords: Corporate governance, political spending, Citizens United, conservative corporate theory, regulatory externalities, lobbying, profit maximization, constitutional law, election law, labor law
article  SSRN  SCOTUS  legal_history  legal_system  legal_theory  corporate_law  corporate_governance  principal-agent  management  shareholders  shareholder_value  campaign_finance  lobbying  elections  labor_law  US_constitution  constitutional_law  public_policy  interest_groups  oligarchy  rent-seeking  investors  savings  capitalism  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
Ronald Collins - Ask the author: Robert Post – Citizens Divided : SCOTUSblog - August 2014
The following is a series of questions posed by Ronald Collins on the occasion of the publication of Citizens Divided: Campaign Finance Reform & the Constitution by Robert C. Post, with commentaries by Pamela Karlan, Lawrence Lessig, Frank Michelman, and Nadia Urbinati. -- The central thesis of my book is to distinguish between two forms of American constitutional self-government. In the first and historically prior form of self-government, self-determination consists of a process of representation mediated by elections. I call this view of self-government “representation.” In the second form of self-government, which did not emerge until the twentieth century, self-determination consists of processes of ongoing communication constituted by First Amendment rights. I call this view of self-government “discursive democracy.” It turns out that representation and discursive democracy possess entirely different constitutional structures and properties. The tension between representation and discursive democracy is at the heart of the doctrinal confusion of cases like Citizens United. -- Question: You write that the “Justices who joined the majority opinion in Citizens United did not seem aware that the constitutional value of electoral integrity is implicit in their own reliance on First Amendment rights.” In this regard you add that your hope in this book is to “build a bridge between the majority and the dissent by illuminating the entailments of our own contemporary commitment to First Amendment ideals.” Tell us about that “bridge” you hope to construct between the Court’s so-called conservative and liberal wings?
books  reviews  kindle-available  US_constitution  SCOTUS  free_speech  elections  political_participation  legitimacy  campaign_finance  corporate_citizenship  corporate_law  democracy  discourse-political_theory  deliberation-public  representative_institutions  oligarchy  EF-add 
august 2014 by dunnettreader
"Reclaiming Egalitarianism in the Political Theory of Campaign Finance " by Frank Pasquale | 2008 University of Illinois Law Review 599
Keywords - campaign finance, egalitarianism, political theory, Rawls, deliberative democracy, politics -- Recent advocacy for campaign finance reform has been based on an ideal of the democratic process which is unrealistic and unhelpful. Scholars should instead return to its egalitarian roots. This article examines how deliberative democratic theory became the main justification for campaign finance reform. It exposes the shortcomings of this deliberativist detour and instead models campaign spending as an effort to commodify issue-salience. Given this dominant function of money in politics, a more effective paradigm for reform is equalizing influence. Advocates of campaign regulation should return to the original principles of reformers; not an idealized vision of the democratic process, but pragmatic concerns about moneyed interests acquiring too much influence over the nation's politics. -- downloaded pdf to Note
article  political_philosophy  legal_theory  constitutionalism  democracy  political_participation  egalitarian  US_constitution  free_speech  plutocracy  interest_groups  legitimacy  campaign_finance  US_legal_system  SCOTUS  media  corruption  franchise  political_culture  political_economy  downloaded  EF-add 
july 2014 by dunnettreader
The new study about oligarchy that's blowing up the Internet, explained - Vox -:April 2014
Who really matters in our democracy — the general public, or wealthy elites? That's the topic of a new study by political scientists Martin Gilens of Princeton and Benjamin Page of Northwestern. The study's been getting lots of attention, because the authors conclude, basically, that the US is a corrupt oligarchy where ordinary voters barely matter. Or as they put it, "economic elites and organized interest groups play a substantial part in affecting public policy, but the general public has little or no independent influence."
US_politics  democracy  oligarchy  plutocracy  inequality  interest_groups  parties  campaign_finance  Congress  EF-add 
may 2014 by dunnettreader
A bygone age … The unraveling … Faith in institutions by Nicholas Lemann | The Washington Monthly
First, we had too much faith in the ability of people like us, smart and well-intentioned upper-middle-class (defined by family background, not by what the Monthly paid) Washington liberals, to determine what was and wasn’t a genuine social need. Our scorn for interest group liberalism led us to undervalue the process of people organizing themselves and pushing the political system to give them what they wanted from it. Second, we failed to anticipate the way that eliminating all those structures that struck us as outdated—the government bureaucracies, the seniority system in Congress, the old-line interest groups—would almost inevitably wind up working to the advantage of elites more than of the ordinary people on whose behalf we imagined ourselves to be advocating. The frictionless, disintermediated, networked world in which we live today is great for people with money and high-demand skills, not so great for everybody else. It’s a cruel irony of the Monthly’s history that our preferred label for ourselves, neoliberal, has come to denote political regimes maximally friendly to the financial markets. I’ve come to see the merits of the liberal structures I scorned in my younger days.
US_history  20thC  intellectual_history  US_politics  liberalism  neoliberalism  democracy  governing_class  Congress  elections  trust  right-wing  interest_groups  bureaucracy  campaign_finance  elites  plutocracy 
april 2014 by dunnettreader
Andrew Stark - Corporate Electoral Activity, Constitutional Discourse, and Conceptions of the Individual | JSTOR: The American Political Science Review, Vol. 86, No. 3 (Sep., 1992), pp. 626-637
Recently, constitutional scholars have begun exploring how far constitutional discourse is governed by competing liberal and republican conceptions of the just or the good society. At the same time, political theorists have placed in doubt how far this debate rests on the metaphysical dichotomy between a radically autonomous and a radically encumbered individual. Scholars, however, have yet to investigate to what extent metaphysical conceptions of the autonomous or the encumbered individual underlie and determine strands of constitutional discourse. I analyze the deep structure of constitutional discourse in one important area--the legitimacy of prohibitions on corporate electoral activity. I show that the constitutional argumentation recurrently mounted against corporate electoral activity rests on a particular version of the radically encumbered individual and that the major constitutional defenses of corporate electoral activity assume a particular version of the radically autonomous individual.
article  jstor  intellectual_history  political_philosophy  legal_theory  US_constitution  individualism  liberalism  republicanism  communitarian  civic_virtue  elections  corporations  corporate_governance  campaign_finance  EF-add 
january 2014 by dunnettreader

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