November 19, 2010
More from this Issue
Vol. 124 No. 1 In Corporate Political Speech: Who Decides?, Professors Lucian Bebchuk and Robert Jackson consider the implications of Citizens United for corporations and corporate governance. They argue that political speech decisions – whether and how to engage in corporate political speech – differ significantly from and should not be subject to the rules governing ordinary business decisions for which corporate decisionmaking structures were designed. Professors Bebchuk and Jackson develop proposals for corporate law rules designed to align political speech decisions with shareholder interests and protect dissenting minority shareholders.
Vol. 124 No. 1 In On Political Corruption, Professor Samuel Issacharoff revisits the central paradigm of the country’s now-frayed campaign finance regulation regime by presenting two competing concepts of corruption. One concept is based on Buckley’s declaration that preventing the possibility or appearance of quid pro quo corruption constitutes a sufficient government interest to regulate political speech, and on Citizens United’s holding that the quid pro quo corruption interest is now the only interest that justifies imposition on the First Amendment in this area. The other concerns ensuring the integrity of the outputs of government policy. He argues that it is this possibility of subverting public goals to the whims of powerful special interests – rather than changing the outcomes of elections – that we should be most concerned about. Professor Issacharoff concludes with an appeal to rethink the incentive structures of our current system in order to formulate appropriate and coherent campaign finance reforms in the wake of Citizens United.
Vol. 124 No. 1 In Two Concepts of Freedom of Speech, Professor Kathleen Sullivan observes that Citizens United tracks the philosophical divide between competing conceptions of free speech. The “free-speech-as-equality” camp reads the First Amendment to allow speech regulations that promote political equality, while the “free-speech-as-liberty” camp views the Amendment as a negative constraint on any speech regulation, regardless of its motivation. This dichotomy is important not only for analyzing the forces at play in Citizens United, but also for understanding the changing alliances of Justices in other First Amendment cases. Professor Sullivan argues that any political reforms that may arise from Citizens United would be well-served by accounting for and accommodating both conceptions of free speech.